Useless new planning guidance

05.54 in and, Boat Plans, guidance, new, nuisance, planning, revisited, useless

Those of us working at the planning coal face will be well aware that the government’s on-line planning guidance finally went live yesterday (replacing the ‘beta’ version), and rejoices in the name of “National Planning Practice Guidance” (NPPG), not to be confused with the “National Planning Policy Framework” (NPPF). The two documents need to be read together (assuming you can actually find your way around the on-line version of the NPPG!).

There is a long 13-page table of withdrawn circulars and other publications, which have been cancelled with effect from 6 March 2014. The list is far too lengthy to summarise here, but a quick glance down the list indicates that among the withdrawn circulars are some old favourites, including some which, in my professional opinion, it was folly to scrap. These include Circular 11/95 - The Use of Conditions in Planning Permissions (1995) - an absolutely vital source of guidance on this topic, Circular 10/97 - Enforcing planning control: legislative provisions and procedural requirements and annexes (1997) - another absolutely crucial guide to policy and procedure in this area of planning law, as well as the accompanying Enforcing Planning Control: Good Practice Guidance for Local Planning Authorities (1997), also Annex E to PPG7 on Agricultural PD (1997) – not perhaps so important, but it was still a useful guide to that topic, Circular 03/09 - Costs Awards in Appeals and other Planning Proceedings (2009) - another document that had proved to be of great help in dealing with costs in planning appeals, as well as Planning and other appeals, and the award of costs (2013). We must also mourn the passing of Letter to Chief Planning Officers (2012): Liberalising the regime for flying flags (a personal favourite), and so the list goes on. Many other documents and useful ‘letters to chief planning officers’ have bitten the dust, including Protected Trees: a guide to tree preservation procedures (2012) and Main changes to the tree preservation order system in England from 6 April 2012 (2012).

This is where I get really annoyed. The 11 sections of the new guidance are no substitute for the procedural advice and guidance in the replaced circulars. To take an example, Part 6 of the document (“Use of Planning Conditions”) is hopelessly inadequate as a replacement of Circular 11/95. It does not even begin to answer many of the points that will inevitably arise in practice, and will leave the many users of the planning system, not to mention LPAs and the Planning Inspectorate, without any guidance as to how such issues should be resolved. This will lead to doubt and uncertainty on this important topic; the outcome of appeals (for example against the refusal of section 73 applications) will become increasingly unpredictable, and the number of legal challenges to appeal decisions is likely to increase.

In the same way, Part 10 of the document “Ensuring effective enforcement” hardly scratches the surface of important areas of enforcement practice and procedure that were covered by Circular 10/97. Try, for example to find in the NPPG any material that would replace Annex 8 of the circular. I tried searching “Gabbitas”, a crucial case on the evidential requirements in respect of a section 191 application, which had been helpfully explained in paragraph 8.15 of the circular. Result: Nothing. So I tried searching “balance of probability”, and amongst a lot of irrelevant references to flood prevention(!) found a paragraph that simply said: “ Article 35 of the Town and Country Planning (Development Management Procedure) Order 2010 (as amended), specifies the contents of an application and how it must be submitted................An application needs to describe precisely what is being applied for (not simply the use class) and the land to which the application relates. Without sufficient or precise information, a local planning authority may be justified in refusing a certificate. This does not preclude another application being submitted later on, if more information can be produced.”. Hopeless! OK; as a very experienced planning professional, I really don’t need to be told how to make an LDC application, but there are a good many planning officers who have a completely erroneous idea of the need for ‘corroborative’ evidence. Paragraph 8.15 put them right on this, but I have been able to find nothing similar to guide them in the NPPG. Nonetheless, the High Court judgment in F W Gabbitas v. SSE is still of binding authority on this issue, and woe betide the LPA that gets it wrong in a case with which I am dealing.

The shiny new “National Planning Practice Guidance” is precisely the opposite of what the government purportedly intended, yet they have brought this about by the sheer folly of their blinkered determination to “reform” the planning system by removing the very ministerial guidance that has underpinned the operation of the planning system for the past 65 years. Far from “making it simpler, clearer and easier for people to use”, this change will have precisely the opposite effect. Those of us who are thoroughly familiar with the planning system are well aware of the way the system works, but pity the poor layman who has only the NPPG to go on!

I have no intention of discarding my copies of circulars such as 11/95 and 10/97, among other very useful summaries of practice and procedure, and I intend to go on referring to them in applications and appeals, even though they have been cancelled. The principles that they explained continue to be relevant and applicable, and so it seems entirely proper to refer to them as a reliable guide to the correct approach to be taken to the many issues that crop up in the course of dealing with planning cases.

I predict that the government (perhaps a future government, but that may be no more than 14 months away) will be forced to revisit this practice guidance and to beef it up substantially, by restoring much of the detail that has been so wantonly discarded. Meanwhile, be prepared for a bumpy ride while LPAs and Planning Inspectors attempt to grapple with the wholly inadequate procedural guidance that they are now to be expected to rely on.

© MARTIN H GOODALL

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Demolition exemption direction amended at last

20.00 in amended, at, Boat Plans, demolition, direction, exemption, guidance, last, new, planning, useless

I am very grateful to Richard Harwood QC of Thirty Nine Essex Street Chambers for drawing our attention to The Town and Country Planning (Demolition – Description of Buildings) Direction 2014. This replaces the 1995 Direction, omitting the categories of demolition that the Court of Appeal declared to be unlawful in R (SAVE Britain’s Heritage) v. SSCLG [2011] EWCA Civ 334. (See my piece in this blog under the title “EIA required for demolition”, dated Tuesday 29 March 2011). It has only taken De-CLoG three years to get around to this!

Except as mentioned below, the Direction provides that the demolition of any building with a cubic content not exceeding 50 cubic metres and the demolition of the whole or any part of any gate, fence, wall or other means of enclosure is not to be taken for the purposes of the 1990 Act [section 55(1A)] to involve development of land.

The exceptions to the Direction reflect one or two other minor changes that have taken place since 1995. Thus the exemption promulgated by the Direction does not extend to the demolition of the whole or any part of any gate, fence, wall or other means of enclosure in a conservation area. Nor does the Direction extend to the demolition of part of a building, other than part of any gate, fence, wall or other means of enclosure.

Partial demolition would in any event amount to a structural alteration of the building and so would be a building operation within the meaning of Section 55(1A) on that basis alone, as paragraph 3 of Circular 10/95 (now cancelled following the publication of the NPPG) confirmed. Partial demolition (except the partial demolition of any gate, fence, wall or other means of enclosure anywhere other than in a conservation area or within the curtilage of a listed building) is therefore development requiring planning permission, although it may be permitted development under other parts of Schedule 2 to the GPDO, for example, Parts 1, 6 and 8, among others.

As I noted when reporting on the judgment in the SAVE case, the Direction is now very limited in its effect, although of course most demolition which is not exempted by this Direction from the definition of development is in fact permitted development under Part 31 of the Second Schedule to the GPDO.

In this connection, it is worth noting that the exclusion from the definition of a “building” in Article 1(1) of the GPDO of any gate, fence, wall or other means of enclosure does not apply to Class B of Part 31. So (other than in a conservation area and within the curtilage of a listed building) the demolition, in whole or in part, of any gate, fence, wall or other means of enclosure was in any event permitted development under Part 31, Class B, and this was not subject to any exclusions or conditions, and no prior notification under Part 31 is required in this case, in contrast with the prior notification requirement that applies to the demolition of other structures.

So far as concerns the demolition in whole or in part of any gate, fence, wall or other means of enclosure in a conservation area, the new direction simply reflects the provisions of the(Town and Country Planning (General Permitted Development) (Amendment) (England) (No. 4) Order 2013), whereby, with effect from 1 October 2013, the demolition of the whole or part of a gate, fence, wall or other enclosure to buildings in a conservation area requires planning permission.

As a result of the judgment in Shimizu (UK) Ltd v. Westminster City Council [1997] 1 WLR 168; [1997] 1 All ER 481, partial demolition of a listed building amounts to alteration of that building rather than demolition. It will nevertheless require Listed Building Consent under sections 7 and 8 of the Listed Buildings Act if this would affect its character as a building of special architectural or historic interest, as it almost certainly will.

Finally, by section 1(5) of the Listed Buildings Act, any object or structure within the curtilage of a listed building which, although not fixed to the building, forms part of the land and has done so since before July 1 1948, is to be treated as part of the building. It follows that the demolition of any such feature, including the demolition of any gate, fence, or wall within or forming the boundary of the curtilage of the listed building (if it has done so since before July 1 1948) will constitute an alteration of the listed building. Depending on its effect on the character of the listed building, such demolition may require Listed Building Consent.

Thus the rules relating to the control of demolition are still unnecessarily complex, and the new Direction has done nothing to reduce that complexity. It simply resolves an anomaly that arose in relation to the 1995 Direction, due to its illegality in light of the judgment in the SAVE case.

© MARTIN H GOODALL

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