Tag Archives: Housing

NPPF Limitations on presumption in favour of sustainable development

Paragraph 14 of the National Planning Policy Framework (“NPPF”) says:

“14. At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.

For plan-making this means that:

• local planning authorities should positively seek opportunities to meet the development needs of their area;

• Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless:

– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole;

– specific policies in this Framework indicate development should be restricted.

For decision-taking this means:

• approving development proposals that accord with the development plan without delay; and

• where the development plan is absent, silent or relevant policies are out-of¬date, granting permission

unless:

– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

– specific policies in this Framework indicate development should be restricted.”

In Wychavon District Council [2016] Coulson J. had said the presumption in favour of sustainable development would apply whether or not the development plan was silent or absent, or whether or not the relevant policies were out-of¬date. To think otherwise would be an important limitation on the ‘golden thread’. Had the NPPF intended this, it would have said so in the clearest terms.

However in Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] Jay J. recognized that the Government’s policy as to the striking of the relevant balance was to be found in paragraph 14 of the NPPF, not elsewhere in the NPPF. He could not see “on what basis paragraph 14 would have any practical utility if it only applied to cases where the development had already been found to be sustainable …paragraph 14 “is the driver to correct decision-taking.”

Wychavon has now been overruled by the Court of Appeal in Barwood Strategic Land II LLP -v- East Staffordshire Borough Council and another [2017].

The Court said the inspector’s decision had been based on the Wychavon misconception:

“that a proposal which does not ….gain the “presumption in favour of sustainable development” under the policy in paragraph 14 of the NPPF [here because the Council could actually demonstrate that there was a 5 year housing supply] can nevertheless acquire it elsewhere in the NPPF. In stating ……that “the presumption in favour of sustainable development is a golden thread that runs throughout [the NPPF]” and that “[as] a result, where a proposal is contrary to the development plan this presumption is a material consideration that should be taken into account”, [the inspector] was accepting that there was a wider “presumption in favour of sustainable development” beyond that described in paragraph 14 of the NPPF….”

There was not.

The decision means that the presumption in favour of sustainable development can only apply in the circumstances expressly prescribed by the NPPF at paragraph 14 and there being no other relevant deficiency in the development plan e.g. being “absent, silent or out of date” the inspector’s decision to grant planning permission had to be quashed.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Supreme Court on sustainable development and the housing supply

Paragraph 49 of the National Planning Policy Framework (“NPPF”) says:

Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.

Paragraph 14 mentions the presumption in favour of sustainable development. It then says this entails for determinations:

approving development proposals that accord with the development plan without delay; and

where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:

– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

– specific policies in this Framework indicate development should be restricted.

When local authorities do not have a 5 year housing land supply how do paragraphs 14 and 49 of the NPPF apply?

This was the position in the Supreme Court case of Suffolk Coastal District Council -v- Hopkins Homes Ltd & Anor [2017].

The Supreme Court applied a 2 stage process.

Firstly you had to apply Paragraph 49.

“Policies for the supply of housing” had to be applied narrowly. Paragraph 49 only considered “housing supply policies” “out of date”. It did not to extend to presume out date other policies that merely “affected” housing supply.

It was necessary to assess whether in fact there was a 5 year deliverable land supply.

Whatever policies caused the lack of 5 year supply such a lack, if it existed, would invoke paragraph 14.

Secondly, if Paragraph 14 applied, the application should receive planning permission unless:

– adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in the NPPF taken as a whole; or

– specific policies in the NPPF indicated that development should be restricted. These are not only restrictive policies actually in the NPPF. They could include green belt and other development plan policies merely referred to in the NPPF.

This is an issue of planning judgment. It is for the decision maker to decide how much weight it to be given to other policies in the development plan.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning Condition excluded the General Development Order

It is widely known that a planning condition on a planning consent can exclude the application of the Town and Country Planning (General Permitted Development) Amendment Regulations (England) Order 2013 (“GPDO”).

In the High Court case of Dunnett Investments Ltd v Secretary of State for Communities and Local Government & Anor [2016] the claimant applied to East Dorset District Council for prior approval under paragraph N(2) of the GPDO for a change of use from Class B1(a) offices to Class C3 dwelling houses at Pear Tree Business Centre, Ferndown, Dorset. The proposal was to subdivide the office building into a total of 127 studio, one bedroom and two bedroom units.

The Council purported to refuse the claimant’s application. The letter said that the proposal was not permitted development as a planning condition in force prevented permitted development rights being exercised.

Condition 1 of the original planning consent to B1 use had said:

“This use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained.”

The reason for the condition was:

“In order that the Council may be satisfied about the details of proposal due to the particular character and location of this proposal.”

The court said consent could be granted by the GPDO, but that was not the case here. The wording of the condition “and for no other purpose whatsoever” meant planning permission was granted solely for B1 (business) use and nothing else without getting prior express planning consent from the local planning authority.

The reason for the imposition of the condition made it clear that control had been retained by the local planning authority so that it could be satisfied about the details of any proposal due to the particular character and location. In other words the sensitivity of the area to potentially unsympathetic uses was protected.

Further, the condition itself restricted any change of use from Class B1 (business) until after the approval of the local planning authority had been “first…obtained” the words used in the condition were consistent with the local planning authority retaining control over any other development that might be contemplated on the site. If that were not the case the words used would be superflous. There was a clear planning purpose behind the imposition of the condition.

The Court of Appeal has just upheld the High Court decision saying:

“…and for no other purpose whatsoever…” is not, as Mr Katkowski would have it, merely emphatic of the scope of the planning permission, but is rather a clear and specific exclusion of GPDO rights.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Old policies can remain part of a development plan

Where planning applications fall to be considered what is the position where old policies remain part of the development plan?

The starting point, for the purposes of decision-making, remains section 38(6) of the Planning and Compulsory Purchase Act 2004.

This requires planning decisions to be made in accordance with the development plan – and, so, in accordance with those old policies and any others contained in the plan – unless material considerations indicate otherwise.

The National Planning Policy Framework (“NPPF”) and the policies it sets out may, depending on the subject-matter and context, constitute significant material considerations.

The mere age of a policy does not mean it ceases to be part of the development plan. The policy continues to be entitled to have priority given to it.

Paragraph 209 and Paragraph 210 to 215 in Annex 1 to the NPPF provide as follows:

“209. The National Planning Policy Framework aims to strengthen local decision making and reinforce the importance of up-to-date plans.”

“211. For the purposes of decision-taking, the policies in the Local Plan (and the London Plan) should not be considered out-of-date simply because they were adopted prior to the publication of this Framework.

212. However, the policies contained in this Framework are material considerations which local planning authorities should take into account from the day of its publication. The Framework must also be taken into account in the preparation of plans.

213. Plans may, therefore, need to be revised to take into account the policies in this Framework. This should be progressed as quickly as possible, either through a partial review or by preparing a new plan.

214. For 12 months from the day of publication, decision-takers may continue to give full weight to relevant policies adopted since 2004 even if there is a limited degree of conflict with this Framework.”

Paragraph 215 sets out the approach to be adopted in relation to old policies and requires an assessment to be made as to their consistency with the policies in the NPPF.

The fact that a particular development plan policy may be old is irrelevant in any assessment of its consistency with NPPF policies.

“215. In other cases and following this 12-month period, due weight should be given to relevant policies in existing plans according to their degree of consistency with this framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).”

In the Court of Appeal case of Gladman Developments Ltd v Daventry District Council & Anor [2016] Gladman had made an application for planning permission in May 2014 for residential development of up to 121 dwellings on two fields next to Weedon Bec village. It was not in-fill development of the village. The application was directly contrary to saved Local Plan policies HS22 and HS24.

The Council refused planning permission, especially relying on those saved policies.

Gladman argued that reduced or no weight should be given to policies HS22 and HS24 as they were out of date.

This was based on two principal arguments:

1. the Local Plan related to the period 1991-2006, and its evidence base related to that period, and the Structure Plan, which had been superseded and was no longer a statement of current planning policy; and

2. policies HS22 and HS24 related to housing supply and the Council could not show that it had a five year supply of deliverable sites for residential development, so those policies were deemed to be out of date under para. 49 of the NPPF.

In fact the Council was able to show that with current saved housing policies it had a five year supply of deliverable sites for residential development and also that policies HS22 and HS24 reflected a high degree of consistency with a range of policies in the NPPF, not just housing policies, and so they ought to be given considerable weight despite the length of time they had been in place.

The fact that the Council was able to demonstrate that it had the five year supply showed that there was no unmet housing need which required policies HS22 and HS24 to be overridden in that case. In short the current policies were not “broken” since they could be applied here without jeopardising the five year housing supply objective.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Very short term lettings breached “private residence” covenant

A long lease contains a covenant “not to use the leased property (or permit it to be used) for any purpose whatsoever other than as a private residence.”

If the long leaseholder advertises the property (a flat) for short term lets and grants a sequence of such lettings, is the leaseholder in breach of the covenant?

In Nemcova v Fairfield Rents Ltd [2016] the United Kingdom Upper Tribunal (Lands Chamber) said to avoid breaching the covenant, there must be a connection between the occupier and the residence such that the occupier would think of it as his or her residence albeit not for ever. “The occupier for the time being must be using it as his or her private residence.”

If the occupier is in the property for a matter of days (rather than weeks or months or years) that is a material pointer to the fact that the occupier is not using the property as a private residence.

To be used as the occupier’s private residence, there must be a degree of permanence extending beyond “being there for a weekend or a few nights in the week.”

Where a person occupies for a matter of days and then leaves the property it cannot be said that whilst occupying they were using the property as their private residence.

The occupation there would so transient that the occupier would not consider the property they were staying in as being their private residence even for the time being.

Each case is depends on it’s facts, relying upon the interpretation of the particular covenant against it’s factual background.

Based on the context in which this lease was granted, and the nature of the proposed relationship between the long lessor and long lessee and taking account the obligations entered into, the appellant had inevitably breached the private residence covenant by granting very short term lettings (days and weeks rather than months).

The tribunal said it was not possible to give a definitive answer to the question posed at the beginning of this piece save to say that ‘It all depends’.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Landlord Development permitted despite conflict with RTM Company’s Functions

Can a landlord develop an additional flat on an apartment block roof where the management of that roof has been transferred to a “right to manage company” (“RTM Company”)?

In a recent county court case the court found that the proposed development would conflict with the RTM Company’s management functions under Part II, Chapter I of the Commonhold and Leasehold Reform Act 2002 but said that the proposed development was permissible so long as the landlord took all reasonable steps to minimise that disturbance both during and after the development.

The RTM Company has been allowed to appeal to the Court of Appeal.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Offices to flats: Deemed planning consent convertible to have lesser conditions

In the High Court case of Pressland v The Council of the London Borough of Hammersmith and Fulham [2016] the Claimant, applied to the Defendant Council for a determination under the Town and Country Planning (General Permitted Development) Order 1995 whether prior approval was required before making a change in use from an office into three self contained residential flats. The Council granted prior approval for the change of use. That approval amounted to deemed planning consent under Article 3 and Class O of Part 3 of Schedule 2 of Town and Country Planning (General Permitted Development) Order 2015. However that approval was subject to fourteen conditions. Some required the later submission, approval and implementation of schemes to deal with things.

The question raised was whether or not an application under section 73 of the Town and Country Planning Act 1990 may be made for the grant of planning permission for the development of land without complying with conditions subject to which a prior approval was granted for development where (as here) planning permission was granted not expressly by the local planning authority but granted instead by virtue of a development order made by the Secretary of State.

The court said such an application could be made. Any conditions subject to which prior approval was granted were “conditions subject to which the relevant Class O planning permission was granted.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Flat Landlord not responsible for Tenant fall in Common Parts

Where a lease is a lease of a dwelling-house which forms part only of a building, then, under section 11 (1A) of the Landlord and Tenant Act 1985 there is implied into the tenancy agreement a compulsory contractual covenant by the lessor to keep in repair the structure and exterior of the dwelling-house and the structure and exterior of any part of the building in which the lessor has an estate or interest (including drains, gutters and external pipes).

In Edwards v Kumarasamy [2015] Mr Kumarasamy’s assured shorthold tenant of his Flat 10, Mr Edwards, had tripped on an external paved area forming part of the apartment block’s common parts. Although he did not own them, Mr Kumarasamyh had a legal easement to use the front hall, the car parking space and Bin Store and other facilities provided by the head landlord.

The Court of Appeal found that this gave him an “estate or interest” in the paved area where Mr Edwards sustained his accident.

Was that enough to bring the extended covenant into play?

The Court of Appeal said Mr Kumarasamy’s legal easement over the front hall meant that the front hall was a part of a building in which he had an estate or interest.

In Brown v Liverpool Corporation [1983] the Court of Appeal held that steps leading to the front door of a self contained dwelling were part of the exterior of the dwelling.

In the current case, the paved area which led from the front door of the apartment block to the car park was not part of the exterior of Flat 10. However, the paved area was both short and also part of the essential means of access to the front hall in which Mr Kumarasamy did have an estate or interest because of his easement to use it. So the court ruled that the paved area could properly be described as the exterior of the front hall.

Mr Kumarasamy said Mr Edwards should have given him notice of the uneven paving stone and a reasonable opportunity to fix it but the court said such a qualification could not be implied here because the defect was outside the property actually let to Mr Edwards.

So the extended Landlord’s covenant applied to the paved area and Mr Kumarasamy was liable to Mr Edwards under it for the defect.

The Supreme Court has, in Edwards v Kumarasamy [2016] , overturned the Court of Appeal decision:

“….. that decision was wrong. The fact that a piece of property is a necessary means of access to a building cannot be sufficient for it to constitute part of the exterior of that building. Steps separated from the outside of a building by a two metre path cannot, as a matter of ordinary English, be said to be part of the exterior of that building.”

So it was strictly unnecessary to consider the other issues raised by the appeal.

However the Supreme Court agreed with the Court of Appeal that Mr Kumarasamy had an “estate or interest” in the paved area where Mr Edwards sustained his accident. But said that the repairing covenant implied by section 11 was to be interpreted and applied in precisely the same way as a landlord’s contractual repairing covenant. The rule in relation to such covenants was that, until he has notice of disrepair a landlord should not normally be liable for disrepair of property.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Proportionality assessment did not apply to private possession claim

In the Supreme Court case of McDonald v McDonald and others [2016] Fiona McDonald, was aged 45 and suffered from a personality disorder. In May 2005 her parents bought 25 Broadway Close, Witney (“the property”), with the aid of a mortgage from Capital Home Loans Ltd (“CHL”)

Her respondents granted her a series of assured shorthold tenancies of the property, culminating in one granted in July 2008 for a term of one year. Miss McDonald continued to live at the property.

The parents got into arrears with CHL and do did Miss McDonald’s rent. CHL appointed Receivers of the property. The Receivers subsequently served a notice, in the name of Miss McDonald’s parents, on Miss McDonald indicating they would be re-possessing the property. When that notice expired, they issued possession proceedings in the name of the parents.

Miss McDonald said that the court should have taken into account the proportionality of making an order for possession, for the purposes of Article 8 of the European Convention on Human Rights (“the ECHR), and, that that would have entitled the court to withhold making an order for possession despite being apparently mandated to do so by section 21(4) of the Housing Act 1988 (“the 1988 Act”) and section 89(1) of the Housing Action 1980 (“the 1980 Act”), which restricts how long a court can postpone an order for possession taking effect.

The Supreme Court faced three issues:

1. whether section 6 of the Human Rights Act 1998 (“the HRA”) and article 8 of the ECHR required a court to consider the proportionality of evicting the occupier when entertaining a claim for possession by a private sector owner against a residential occupier;

2. if the answer to 1. was yes, whether the relevant legislation, in particular section 21(4) of the 1988 Act, can be read so as to comply with that conclusion; and

3. whether, if the answer to 1 and 2 was yes, the trial judge would have been entitled to dismiss the claim for possession in this case, as he said he would have done, on the grounds that the claim for possession was disproportionate.

The Supreme Court said where the party seeking possession is a public authority within the meaning of section 6 of the HRA the occupier can raise the question of the proportionality of making an order for possession. However in the case of Manchester City Council v Pinnock [2011], the Supreme Court made it clear that it’s judgment had no application to cases where the person seeking possession was a private landowner.

The Supreme Court’s preliminary view was that it is unarguable for a tenant to say article 8 overrides the contractual relationship between the parties, at least where the legislative provisions of a democratically elected domestic legislature has balanced the competing interests of private sector landlords and residential tenants. Otherwise, the ECHR would be directly enforceable between private citizens so as to alter their contractual rights and obligations.

As to 2. above, had the court been persuaded that Miss McDonald was right on issue 1., a declaration of incompatibility under section 4 of the HRA would have been the only remedy.

As to 3, the judge had not considered whether, if the claim for possession had been disproportionate, there might have been other solutions to the problem than dismissing the claim.

Where (rarely) a court was required to assess the proportionality of making a possession order, it’s powers to suspend or postpone the effect of that order are much restricted by section 89(1) of the 1980 Act.

Very few cases justified a refusal, as opposed to a postponement, of a possession order and could only be cases where the gravity of the interference in the occupier’s right to respect for their home heavily outweighed the landlord’s interest in regaining possession.

Here, it seemed likely that on a proportionality assessment the most Miss McDonald could hope for would have been an order for possession in six weeks’ time – the maximum permitted by section 89(1) of the 1980 Act.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Earlier extension discounted under permitted development rights

In relation to householders’ permitted development rights what is the meaning of “the enlarged part of the dwellinghouse” in Class A of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development)(England) Order 2015?

This grants planning permission for the “enlargement” of a dwellinghouse. Paragraph A.1(g) says that development is not permitted where the “enlarged part” would have more than one storey, and would (i) extend more than 6 metres [or 8 metres for a detached house] from the rear wall of the “original dwellinghouse”, or (ii) be more than 4 metres in height.

In the High Court case of Hilton v Secretary of State for Communities and Local Government [2016] Mr Hilton had already constructed a two-storey rear extension pursuant to an express planning permission. He then applied for prior approval for a single storey rear extension. Collectively the existing and proposed extensions would extend less than 6 metres from the rear wall of the original dwellinghouse.

However, on appeal under Section 78 of the Town and Country Planning Act 1990 the Inspector ruled that the “enlarged part” went beyond the extension proposed under the permitted development right; it also included the earlier extension. So the proposal was not permitted development because the previous extension had more than one storey. This was consistent with the Secretary of State’s guidance on householder permitted development rights.

The High Court said that the Inspector (and by implication that guidance) was wrong, and that the “enlarged part” of a dwellinghouse under Class A meant only what was being proposed.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.