Law of town and country planning.

LAW OF TOWN & COUNTRY PLANNING

Assignment 1

PART 1

The Definition of Development

Planning Permission is not an option and neither is it a foregone conclusion. Planning Permission can be applied for retrospectively but even then, a favorable approval is not mandatory.

Although Planning Law has not been created by statutes but by successive governments, it is a Civil law. An infringement of any Planning Permission already approved or carrying out of works with disregard to Planning requirements can lead the individual to committing a criminal offence.

Works to the barn in question would require Planning Permission as defined by s.55 (1) TCPA 1990 because the works would be an operational development as defined in the Act:

firstly ‘…the carrying out of building, engineering, mining or other operations in, on, over or under the land…’

secondly ‘…the making of any material change in the use of any buildings or other land’.

As the case stands, the only information available is that planning permission had been granted ‘some time ago’ and that the barn was ‘outside the scope ‘ of this permission. The actual works to convert the barn into a small industrial unit were subsequently begun in 1997 but the Local Planning Authority was only ‘recently’ made aware of the situation.

Site specific information available is that the local plan contains a policy that would look favorably at redundant former agricultural buildings to be converted into offices and would also support applications that increased employment in rural areas.

What is not known is whether the farm is in a Conservation area and whether the buildings or part of the buildings on the farm are of historical interest or have been Listed.

It is possible that the date that the building works began could have a bearing on the case and this will be investigated further.

The individual building processes can be further analysed to define the extent of works covered by s.55 (1) of the 1990 Act.

Demolition of buildings

The development of the barn may require demolition of certain parts of the building. Any demolition that took place prior to 1991 would not have required planning consent because it would not have been deemed development. If the barn is listed or if the farm is in a Conservation area, then consent for those conditions would have applied. The case of Cambridge CC v S.O.S.E (1991) defined demolition as a ‘building operation’ but the Court of Appeal later repealed this. However, more recently, s, 55 TCPA 1990 has been amended to incorporate the Town and Country Planning (Demolition – Description of Buildings ) Direction, 1995 wherein has been inserted s.55 (2) (g) under Section 13 PCA which states that demolition of an outbuilding adjoining a house will be considered ‘development’ if the outbuilding is greater than 50m3 measured externally. However, ‘development’ would not include part of a building, such as a gate, wall or any other means of enclosure.

So, providing any wholescale demolition took place before 1995, or after that date if the barn was less than 50m3 externally, planning would not be required.

Renovation Works

These include rebuilding operations, structural alterations and additions to buildings. Under s.336 of the TCPA 1990, these would all be deemed building operations. However, development does not include maintenance improvement or alterations which would only affect the interior and / or would not materially affect the external appearance. This latter point was further reinforced by Burroughs Day v Bristol City Council (1996) QBD which confirmed that development excluded works that affected only the exterior and did not materially alter the external appearance, and that, even then, material alterations must be capable of being seen from the ground or a neighboring building.

Material Change of Use

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Material Change of Use

Whereas ‘development’ is defined by s.55 (1) of the TCPA 1990 Act, there is no statutory definition of ‘material change of use’. There are no legal criteria but rather the LPA would have to make a decision based on facts, namely- there is a change in the character of use, whether the purpose of use has been changed and the effects on the neighborhood. The prime case law is Birmingham Corporation v Habib Ullah (1964) which considered that the change in use from a single dwelling house to a house in multiple occupation did result in changes in all three criteria required for a factual decision to warrant a planning application. However, where there is a change in use albeit within the curtilage of a dwelling for a purpose incidental to its enjoyment, then there may be no material change in use. But with respect to Wallington v SOS for Wales (1990), the question of reasonableness was raised; it was unreasonable to keep many dogs in a dwelling house and hence turn it into a ‘dog-house’, thus resulting in a material change of use.

Town and Country Planning (Use Classes) Order 1987

This Order specifically states that a change in use from one class to another in the same class is not development. The intention is to change the use of the barn from a building that one associates with storage to a building that will be converted in to industrial units. The TCPA Use Classes) Order 1987 considers the use of a building as a barn to fall within Class B, specifically B8 – i.e., use for storage or as a distribution centre. Its change of use into a ‘light industrial’ unit would fall into the class use B1 – any industrial process, which could be carried out in a residential area. If the industrial process will involve noise, use and storage of hazardous materials and generally work registrable under the Alkali, etc. Works regulation Act 1906 (a), then it will fall into class use B2. If this were the case, then planning permission may be required. The change from class B8 to B1 permitted development under Part 3 of Schedule 2 of the GPDO 1995. Even here though, although a ‘class swop’ from B8 to B1 is permissible, there is a restriction limiting the floor area of the building to no more than 235m2. Furthermore, Planning permission may be required if a new access road is to be created because this is an engineering operation ‘providing means of access to the highway’. The barn and the farm should have existing access to the highway and if the only works to the accessway were to maintain it and not create a new accessway, an engineering type of building operation would not apply. But Part 2, Class B, of Schedule 2 of the GPDO 1995 permits the formation, laying out and construction of a means of access to a highway provided the highway is not a trunk or classified road, and the road is required in connection with permitted development of B8 to B1.

Planning (Listed Buildings and Conservation Areas) Act 1990 (PLBA)

When planning permission was granted to convert the outbuildings into offices, the barn did not form part of the application. The barn is an 18th century building so it is possible that it may be of special architectural or historical interest, as set out in s.1 (1) PLBA. However, if a building is listed, then other buildings in the curtilage will also be protected, as tested by Skerritts of Nottingham Ltd v SSETR (2000), which found that where buildings were substantial, the curtilage of a listed building is likely to extend to past or current buildings. Therefore, if the barn is listed, then the original planning permission for the outbuildings would have taken this into account and conditions would have been imposed to protect the historical character of the land, fixtures and buildings surrounding the barn.

It is possible that the LPA were unaware of the special historical interest of the barn until it was brought to their attention that the barn was being converted to form an industrial unit. The LPA may then serve a Building Preservation Notice with the intention that the Secretary of State will list the premises. The effect of this Notice is to stop works until the Secretary of State has made a decision.

The timing again is critical because the Skerritts case law was applied in 2000, but the actual building works to the barn started in 1997 when the precedent case law was Shimizu (UK) Ltd. V Westminster CC (1997) which held that a listed building did not include a ‘part ‘of a listed building so that demolitions to parts of the barn would have been lawful because demolition means clearing the whole site. Nevertheless, it might be prudent applying for listed building consent and any works which have been carried out prior to the application may be granted and authorised from the date of the consent, as set out in s. 8 (3) PLBA.

Even if the barn is not of special architectural or historic interest, it is quite possible that the area in which the farm is located is of special architectural or historical interest. Such an area is designated as a Conservation area. However there is no legal control within such areas and there are a series of case laws which illustrate this. In particular, South Lakeland DC v SSE & Carlisle Parsonages Board (1991) made it clear that preserving did not necessarily mean retaining or enhancing but could include for leaving the character unharmed. This was reiterated by Historic Buildings & Monuments Commission v SSE (1996) where the LPA and English Heritage’s objections were over ruled and the replacement of materials with like-for-like was not deemed paramount.

Similarly, Green Belts are designated to safeguard the surrounding countryside from encroachment and can restrict and impede development.

Both Conservation Areas and Green Belts form part of a Unitary Development Plan and under s.70 (2) TCPA 1990, the LPA when considering planning applications needs to ‘have regard to the provisions of the Development plan’. Peacock would find his LPA favorable towards his application because its UDP contains a policy in favour of creating new employment opportunities in rural areas. Although there might be an increase in traffic as a result of workers entering the site, there may be an opportunity for Peacock to enter into a Section 106 agreement with the LPA. He could agree to construct and maintain to high way standards both the accessway on his land and its junction with the main trunk road, and plant trees to reduce the noise and environmental impact of the new accessway.

PART 2

Breach of Planning Control

Enforcement & Stop Notices

Because Peacock has begun work on the barn without planning permission, there is a breach of planning control; there may also have been conditions imposed on the planning permission granted for the outbuildings and any non-compliance with those conditions may further lead to a breach of planning control.

The LPA needs to tread carefully with enforcement notices although it can impose an enforcement ‘where it appears’ a breach has occurred irrespective of hard evidence, as stated in Miller-Mead v MHLG (1963). The problem for the LPA arises where works are in progress without planning permission approval or in contravention to any conditions, but where work is actually in compliance with a current UDP and any retrospective planning application would be approved.

The procedure for issuing notices is set out in s.172 TCPA 1990, in particular copies of the notice must be served within 28 days of issue. It is important that they are served on the owner and occupiers of the land and any other persons with an interest in the land. This is the first stumbling block because finding the correct people to serve the notice on may not be that easy. Section 171B TCPA 1990 also sets time limits for issuing notices. If structural and engineering building works to the barn have been substantially completed four years previous to any enforcement notice being considered, there will be immunity from enforcement in which case a certificate for lawful development should be sought. Otherwise, any enforcement notice must be clear and state the buildings or land referred to and the time given to comply with the outstanding matters, or it will be annulled. But the notice does not need to differentiate between a material change of use or operational development. Once the enforcement notice has been issued, it comes into effect on the date it specifies but this date may be suspended if an appeal is lodged. To circumvent developers continuing on site following an appeal, a recent amendment to the TCPA 1990, namely s.6 PCA 1991, allows a Court to order that an enforcement notice will hold firm until the final determination of the proceedings.

The grounds for appeal are set out in s.174 and if the developer is not satisfied with LPA’s decision, then the matter can be taken higher to the Secretary of Stare and following Bryan v United Kingdom (1195), to the European Court of Human Rights.

The LPA may enter the land to carry out any necessary work and recover any expenses incurred. In R v Chiltern, ex p Dyason, the LPA ‘s decision to take direct enforcement action was upheld, the building was demolished by the Council and costs were imposed on the owner.

Where the LPA does decide to go ahead with an enforcement notice, a stop notice may be served to halt the operation or change of use before the expiry of the compliance period and where an appeal has been lodged that may suspend the enforcement notice. However, the stop notice will not halt all works but only those believed to be a breach of planning controls. In the case of works to the barn which began some years ago, the LPA will need to further ensure that a change of use only took place less than 12 months ago if a stop notice is to be issued.

If the stop notice is incorrectly issued, compensation may be payable.

Other Enforcement Options

Both the Planning Contravention Notice and the Breach of Condition Notice were introduced in 1991. They can be used in addition to the Enforcement and Stop Notices and are not meant to replace them. They are less onerous on the LPA and the developer.

Section 1 PCA 1991 inserted a new s.171C into the TCPA 1990 to introduce this new notice.

Similar to an enforcement notice, the Planning Contravention Notice can be served where there appears to be either a breach of planning control or a breach of conditions. Unlike the enforcement notice however, the PCN can be served on any person with a vested interest in the development, including a builder or a trespasser on site, who will then be expected to provide information about operations on, use of, or activities on the land in question. The person who receives the PCN must reply within 21 days. The LPA may however give notice of a time and place at which the person served can make a representation.

Unlike the enforcement notice there is no right of appeal and there are no time limits. The primary use of the PCN is to persuade the developer to submit a planning application.

The Breach of Condition Notice became extant when section 2 PCA inserted a new s.187A into the TCPA 1990. It was introduced primarily to deal with the non-compliance of conditions where planning permission had already previously been granted. It may be served on the developer or the person who has a control in the land and must state clearly the items required to comply with the conditions and allow at least 28 days for compliance. As with the Enforcement, Stop and Planning Contravention notices, a breach of the Condition notice is an offence. There is no formal appeal procedure against the BCN but the developer needs to prove that all reasonable steps were taken to comply with the planning conditions or that the person no longer had control of the land, as when a builder completes his part of the work and leaves the site.

Another enforcement option available to a LPA is a Common Law Injunction.

This is a drastic measure used by a LPA to prosecute or initiate proceedings to protect the interests of its inhabitants, particularly where there is a deliberate and flagrant breach of the planning law and breach of the law. Failure to obey may lead to imprisonment (Kent CC v Bachelor (1979)). However, the person in breach must obviously be easy to identify if incarceration is an option. It can also be expensive to initiate.

In some cases the perpetrator may be difficult to identify and the main obstacle to a settlement is the continual carrying out of unauthorised development and failure to comply with a condition or limitation of planning permission, either an actual or apprehended breach of planning control. In such instances, a Statutory Planning Injunction can be applied for. This is an injunction specifically for planning cases and the result of Section 2 PCA 1991 inserting a new s.187B into the TCPA 1990. In Croyden LBC v Gladden it was employed to stop a house owner from continually carrying out variations of a development that had been refused planning permission in the first instance.

Listed Buildings

The Planning Contravention Notice, the Breach of Condition Notice and the statutory Planning Injunction could not be applied to listed buildings because these enforcement notices are outside the definition of ‘breach of planning control’. Where the LPA considers there has been a contravention of the requirement to obtain listed building consent, the LPA may issue a Listed Building Enforcement Notice. This may be particularly relevant if the barn belonging to Peacock may be Listed.

There are several grounds for appeal if this notice is served. Suffice to say that if works to the barn have been progressing for the 3 or 4 years, the cost of restoring the building to its former state might be too onerous, and a correct record of the former state of the building may not be available. Nevertheless, the LPA has the power to issue a repair notice and failing any progress, follow this up after 2 months to purchase compulsorily a listed building. The owner may be required to pay the expense of any work carried out thereafter by the LPA.

If all building works to the barn have been completed and have been lawfully completed, albeit without planning permission, the LPA can issue a Discontinuance Order (ss.102 & 103, TCPA 1990). This may order the barn to be pulled down, to be only used as a barn irrespective of the work carried out or grant planning permission for the new use. Any non-compliance can lead the LPA to claim costs for rectifying the building works, but Peacock may claim compensation if planning approval results.

Bearing in mind that planning permission exists for the conversion of the outbuildings, the planning permission granted may be modified if the building works have not been completed and the change of use from a barn to an industrial unit has not yet taken place (ss. 97-99 TCPA 1990). Because the LPA has a UDP that would look favorably at increasing employment in the rural areas, it may not have any objections to Peacock’s barn conversion.

Conclusion

There are various options available for Peacock to apply for a retrospective planning application, each one of which is much more favorable and far less onerous than waiting for the LPA to serve any number of punitive enforcement notices. The flouting of Planning Law is a criminal offence and failure to comply with its requirements should not be taken lightly. The LPA development plan contains policies which would help rather than hinder any application, failing which there are still permitted developments that can be automatically granted to allow the barn to be used for light industrial purposes.