Background

When Her Majesty was considering who in the world of planning had made a significant contribution and was worthy of honours it is unlikely that the names Alan Beesley and Robert Fidler were brought to her attention. These two “developers” have, nonetheless brought about quite dramatic changes in planning law, changes which have now become enshrined in the Localism Act of 2011.

Messrs Beesley and Fidler both sought to make use of the four-year rule whereby operational development becomes immune from enforcement after that period and the creation of a dwelling unit acquires the same immunity after the same period, forcing the local planning authority to issue a Certificate of Lawful Existing Use or Development. Both men made national news by building their respective dwellings behind hay bales and living there for the requisite period before making the use public. While the Fidlers were forced by the Courts to demolish their dream home, the Beesleys, who at least had permission for a barn and built a house that looked like a barn, managed to keep theirs. These stories and the court rulings in each case have led to a significant change in the enforcement powers wielded by local planning authorities.

The Localism Act 2011

Under S124 of the Localism Act the four-year-rule and its older brother, the ten-year-rule, have been revamped to take on board the concept of deliberate concealment, which brought Mr Fidler’s castle down. When this part of the Act comes into force, an as yet unknown date, the planning authority can apply to the Magistrates Court for a Planning Enforcement Order within six months of a breach of planning control being discovered and, if the PEO is granted, may take action within the next twelve months, even if the four or ten year periods allowed by S171 of the 1990 Act have expired. Immunity from enforcement is no longer guaranteed if, in the view of the Magistrates, the breach has been deliberately concealed, even partially.

Also, coming down hard on planning villains, S70c of the main Planning Act is added by the Localism Act, allowing LPAs to decline to deal with an application made retrospectively to address matters which are already the subject of an Enforcement Notice. If such an application is made before the Notice has been served, then an appeal against the Notice cannot include Ground A (planning permission should be granted) unless the appeal is lodged after the 8/13 week application period expires.

Comment

While Messrs Beesley and Fidler concealed their dodgy developments, literally, by hiding them behind bales of hay, the Localism Act seems to spread the net a lot wider by not defining concealment or partial concealment. It also gives the LPA much more scope to investigate alleged breaches as the six month date for seeking a PEO starts when the LPA believes the evidence is sufficient to justify its application to the Courts. The Magistrates will have to decide whether deliberate concealment has taken place and this seems likely to catch a lot of innocents who undertake works believing planning permission to be unnecessary (step forward Sir Cliff Richard), those who unwisely proceeded on the basis of unsound advice, even from a planning officer, or those who do what they do quite openly but without paying the right Council Tax. There are so many grey areas in planning, as regards what needs permission, that the new enforcement powers, perhaps unwittingly, are going to tar a lot of unwary people with the “behind the haystack” brush. It does not seem likely that the government intended to wipe out the four- and ten-year rules as fundamental rights in planning law, but that could yet be the outcome of the new legislation, prompting more appeals, more unnecessary applications and more disputed lawful use cases. All stick and not much carrot!

Get your flags out for Mr Pickles!

Draft Changes to Regulations controlling Flags

Tackling yet another of planning’s front page issues, Eric Pickles has cut the red tape, or bunting, involved in the display of flags.

Under the Advert Regulations (Class H) a national, EU, county or saint’s flag on a vertical pole – one flat, one pole and no adverts – does not need permission, while a flag used for advertising needs permission, if it is not on a single flagstaff projecting vertically from a roof, with certain exemptions for house builders (Class 7).

Under the proposed new regs, Class H is to be extended to include any organisation of which the UK is a member, any county, district, city, town parish, village or hamlet flag, flags of administrative areas outside the UK (e.g. Australian States??), heraldic banners, ensigns of the Royal Navy and armed forces.

Class 7 (deemed consent) will be extended to include the “Pride” flag, award scheme flags and sports club flags (flown by members and supporters, but not by the Clubs themselves). In addition advertisement flags need no longer been on a vertical pole, and two flag/pole combos may now be sited within the curtilage of a building rather than on its roof.

Comments

It’s good to see that the DCLG has its finger on the pulse and is prepared to tackle the trickiest of planning problems. It seems unlikely to create quite the fuss prompted by the draft NPPF, although, when the Green Belt is covered in Manchester United flags, maybe the National Trust will start another campaign.

In practical terms it would generally be a good thing to lighten up on the oppressive nature of the Advert Regulations, and companies wanting to advertise themselves (but not their products) on flags projecting from the wall of their building or on their forecourts may find flags an easier option than high level or tall adverts.

That apart, there seems little to explain why Mr Pickles, bless him, should be so worked up about flags unless he too wants to advertise this favourite football club or his family coat of arms. Nice one, Eric.

Unilateral Undertakings – a salutory lesson

The Facts

It’s a close call as to who the recent case of The Queen (on the application of Millgate Developments Ltd) v Wokingham Borough Council shows in the worst light, though I think we can properly exclude ERII

Millgate Developments Ltd applied to WBC for planning permission for 14 houses. WDC required a developer contribution, and, when permission was refused for other reasons, included the extra reason that there was no such contribution. MDL appealed, and, as you do, included a unilateral undertaking by which they promised to make a payment.

In allowing their appeal, however, the Inspector found that WDC had not justified any of the payments and permission was granted without any conditions related to the unilateral undertaking.

A result for MDL, or so you’d think, until WDC sued them for non-payment of the contributions and refused to discharge the undertaking. MDL failed to overturn the decision through judicial review and the Court of Appeal found that the LPA was indeed entitled to the money.

The Lesson

If you draft or rely upon a unilateral undertaking, especially at appeal or if the need for payments is challenged, in drafting the document you must make sure that the promise to make the payments, or indeed to do anything else, is conditional upon the Inspector finding them to be necessary. Otherwise, as with MDL, you’ll have to pay up.

CIL-LY Beggers – an Update

Surprise, surprise, the independent examiner has agreed entirely with Boris Johnson’s proposed CIL rates for London Borough’s, as reported in the last WP Newsletter. The examiner came down in favour of the one size fits all approach for each borough, rather than trying to divide the contributions within smaller areas. As Boris has first call on developer contributions, many boroughs fear that their own CIL requirements may make development unviable, undermining local infrastructure projects – but developers all have pots of spare cash, don’t they?