Q & A 4.12/10
A ground of appeal currently before The Planning Inspectorate relating to a Discontinuance Notice by my authority is that the whole process of such action is incompatible with the requirement of Article 1 of Protocol 1 of the European Convention on Human Rights. Are you aware of any precedent?
Use of this power found at section 102 of the Town and Country Planning Act 1990 is very rare due to the compensation implications. I am not aware of any human rights challenge, but perhaps a reader could provide an insight?
My council is currently looking at an application for a hostel and considering whether fear of crime can be a material consideration. In the case in hand the fear is not backed up by substantive evidence, but is clearly an issue for local residents. Case law seems to suggest that even unjustified fears may be a material consideration. Is there a definitive ruling on this?
As you say, the courts have addressed this question, holding that public fear and apprehension about the impact of a development is capable of being a land use related material consideration even when not rational or fact based. This means that such fears must be taken on board in the balance of decision making. However, at the end of the day the actual weight that the decision maker may give to public apprehension is a matter of judgment having regard to all the facts of a particular case. Currently this matter is a live issue in the telecommunications field, and it is of note that earlier this year the secretary of state submitted to judgment when an appeal decision relating to a mast in a residential area was challenged in the High Court. Here an inspector had reasoned that resident's fears of health hazards from the installation were misplaced having regard to the scientific evidence, but he dismissed the appeal on the basis that if allowed it would serve as a constant reminder of their concerns. Clearly this is a sensitive area of decision making which will continue to give rise to tensions, and it would be helpful if clear ministerial advice was available.
Newly-built flats have been occupied without the car parking required by a condition of the permission, resulting in complaints of increased on-street parking. My department has asked for a Breach of Condition Notice (BCN) to be served requiring the provision of the approved parking, but not the cessation of occupation. This is a practice we have adopted in the past with no difficulties. However, our solicitor is concerned that a BCN would make the continued occupation of the flats unlawful, potentially breaching Article 8 of the Human Rights Act, and therefore recommends that future conditions omit the words "the dwellings shall not be occupied until". As most planning authorities adopt such wording in accordance with the model conditions in Circular 11/95, if the solicitor's view is correct, surely this has wide-ranging implications?
Article 8 of the Human Rights Act 1998 confers the right to respect for private and family life and for the home. In deciding whether there has been a breach of this Article, it would be necessary for the Court to consider whether a fair balance has been struck between the rights of the individual property owner and society as a whole: a claim can only succeed if the interference in the right of the individual concerned is not outweighed by the public interest. To date, this has happened very rarely.
In my view, your solicitor seems to be adopting an over-cautious approach and I am not aware of any specific legal authority that would support the action recommended. Unless this is based on such a precedent, in my view you should continue to follow the wording suggested in the model conditions set out in circular 11/95 until such time as any revised guidance is issued to take account of any issue arising from human rights legislation. I think that to do otherwise would seriously prejudice your authority’s ability to secure compliance with this type of condition.
I was interested in your response to the query by ST relating to flats had been occupied without compliance with a condition requiring parking facilities prior to occupation (Planning 20 February 2004, p25). The question was asked whether a Breach of Condition Notice would breach Human Rights legislation.
My understanding (apparently confirmed in an article in the same edition which reported on a recent RTPI Yorkshire Branch Conference) is that if a pre-condition has not been complied with, then this makes the whole development unlawful. It would therefore not be possible to serve a Breach of Condition Notice as the conditions themselves would no longer be enforceable. It would only be possible to secure compliance through an enforcement notice or injunction. In such circumstances the Human Rights abuse must rest with the developer, permitting occupation without compliance with a pre-condition, thus rendering those occupiers liable to such action.
My authority is currently dealing with an application for a hostel. There is no information on who the occupiers might be and concerns have been expressed that these could include young offenders or homeless persons, including asylum seekers. Is it right to require clarification of this and take it into account when deciding whether to grant planning permission?
With some notable exceptions, the general approach to planning is that it is concerned with land and buildings, and not the identity of their occupiers. This is made clear in PPG1, and circulars 13/87 on changes of use and 11/95 on the use of planning conditions. However, in the case of a hostel, which was removed from Class C1 of the 1987 Use Classes Order in 1994, this term can include both long-term and transient accommodation and different types of hostel can have very different effects in planning terms. I therefore think it quite legitimate to require further information on the nature of the proposed occupiers and have regard to this, in so far as it influences the character of the use of the land under consideration and how that would impact on neighbouring land. Case law, especially West Midlands Probation Committee v SoSE and Walsall Metropolitan Borough Council, and recent appeal decisions support this view.
Some years ago my brother-in-law bought an ‘affordable’ property at the same price as nearby open-market housing but without knowledge of its particular status. Subsequent applications for a garage and a conservatory were returned by the planning authority, as these were permitted development, but it did not refer to the dwelling’s affordable status or explain the consequences of extending the property. When the house was put up for sale recently, the council insisted that the price reflect its affordable value when built and exclude later extensions. It has refused to authorise any sale based on a valuation that takes these into account, even at cost price, resulting in a potential loss of about £35,000. Should the council not have barred all additions to the property to protect future owners? Is it behaving correctly and is there anything that can be done to recoup the costs of these works?
I am not aware of the circumstances or extent of the council’s legal control over this dwelling. However, it is common practice for planning authorities to resist the enlargement of smaller dwellings to ensure that they continue to be part of the affordable housing stock. While it would have been possible for the planning authority to prevent extensions to a new dwelling by a planning condition removing certain permitted development rights, it is under no obligation to do so. I am surprised that your brother-in-law was unaware that he was buying an ‘affordable property’ as the implications should have been revealed in the sales particulars or pre-purchase searches. There may therefore be some remedy here. However, any dispute over the value of the property is not a planning matter and your brother-in-law should thus seek the advice of a solicitor or property valuer.
I am challenging an application concerning a site adjoining my client’s land. My client has a legal right of way over part of the application site. However, the proposal would render this access unusable and thus any permission could not be implemented. My client will not agree to vary his right of way as he does not want to see the development built. The Case Officer says that this is not a planning consideration but a legal matter between landowners. A permission already exists for a development accessed from an existing estate road but that would require the developer to pay a ransom. A lot of time has been spent on a contentious proposal that cannot be built. Is the authority’s approach correct?
The blocking-up or infringement of a private right of way is not a planning consideration but a civil matter between private individuals. Planning authorities have a duty to consider only the suitability of a proposed development in land-use terms regardless of whether legal constraints would prevent implementation of any permission granted. In R. v Secretary of State for the Environment, Transport and the Regions Ex parte Webster the courts held that planning authorities are not concerned with the private rights of individual landowners and whether one landowner might have to pay a ransom to another to achieve satisfactory access. The authority should be concerned only to ensure that a proposed access would facilitate a suitable development in physical terms. This approach follows the line taken in British Railways Board v Secretary of State for the Environment  where the House of Lords ruled that the fact that a permission might appear to have no reasonable prospect of being implemented did not mean that it would be irrational.
It is well established that in determining applications, local authorities are not required to take legal constraints on development into account. However, refusal notices now often say that authorities have considered human rights issues. Since these could relate to legal matters, is there not a conflict with Article 1 of the first protocol of the European Convention of Human Rights, such as when permission is granted where the beneficiary of a right of way is likely to lose "the peaceful enjoyment of his possessions"?
Article 1 carries the qualification that no-one shall be deprived of their possessions except in the public interest. A balance must therefore be struck between public and private objectives and in so doing it is necessary to apply a test of proportionality. In the case you describe, I assume that the beneficiary of the right of way would only be dispossessed were the permission to be implemented. In itself, the permission would not deprive him of the right to seek appropriate remedy through the courts.
My authority has received an application for a "smoking tent" outside a pub. Smoking is recognised as the biggest cause of ill health and preventable death in the borough, which has an incidence of heart disease and lung cancer higher than the national average. Improving poor health outcomes in relation to smoking is a key priority for the council. PPS23 states that any consideration of air quality that impacts on health is capable of being a material planning consideration. So would a refusal of this application on grounds of causing ill health be legitimate?
There is a considerable overlap between the planning and pollution control regimes. As you point out, PPS23 advises that air quality can be a material planning consideration "in so far as it arises or may arise from or may affect any land use". While this is an issue that normally arises in cases concerning developments for or in close proximity to industrial and commercial premises, waste disposal plants, transport hubs and routes and facilities that generate high traffic levels, it is rarely determinative. In the case of a smoking tent, I think that unless this would result in material harm to the health of occupiers adjoining the development, to deny permission on the grounds that it would enable smokers to continue to practice their harmful habit would be too paternalistic and overstep the proper bounds of the planning system. Readers’ views are invited.