LEVEL 6 - UNIT 11 PLANNING LAW SUGGESTED ANSWERS - JANUARY 2014

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1 Note to Candidates and Tutors: LEVEL 6 - UNIT 11 PLANNING LAW SUGGESTED ANSWERS - JANUARY 2014 The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2014 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners reports which provide feedback on student performance in the examination. Question 1 SECTION A The reforms introduced by the Coalition Government have been influenced considerably by a Conservative Party Green Paper: Open Source Planning (2010). This paper advocated decentralisation and the return of power to local communities. It also examined how planning policy could address the housing needs of the country. This contrasted with the previous Labour Government s top-down policy of regional planning which the Conservative Party stigmatised as broken. The overall aim was the creation of a basic national framework of planning priorities and policies within which local people and their councils could produce distinctive local policies to create communities which are sustainable, attractive and good to live in. The first step in implementing this programme was the publication of the Localism Bill which obtained the royal assent on 15 November 2011 as the Localism Act 2011 ( the LA 2011 ). The draft National Planning Policy Framework ( the NPPF ) was made available for consultation in July 2011 and was issued in final form on 27 March The Appendix to the NPPF states: 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. One element in the re-establishment of local control over planning was the introduction of neighbourhood planning (s116 and Schedules 9 and 10 LA 2011). Procedural matters are set out in the Neighbourhood Planning (General) Regulations 2012 ( the Neighbourhood Regulations 2012 ) which came into force on 6 April The Government described the provisions as a new way for communities to decide the future of the places where they live and work. The new system is an entirely new concept in planning law, though its adoption with Page 1 of 12

2 qualifying bodies is optional. It is intended to enable parish councils and neighbourhood forums, as qualifying bodies, to make neighbourhood development plans ( NDPs ) which can become part of the statutory development plan of the local planning authority ( LPA ). An LPA must make an NDP if a proposal has the requisite approval in referendums conducted under Schedule 4B LA It may only refuse the proposal if it is incompatible with any European Union ( EU ) or European Convention on Human Rights ( ECHR ) provision. The NDP must take effect for a specified period and applies only to a single neighbourhood. Some development is excluded: (a) development consisting of a county matter ; (b) development falling within Schedule 1 of the Environmental Impact Assessment Regulations ( the EIA Regulations ); (c) development consisting wholly or partly of a nationally significant infrastructure project under the Planning Act 2008; (d) development of a specific description as specified by regulations; (e) development in a specified area as prescribed by regulations. NDPs must conform generally to the strategic policies contained in the local plan but, once approved, NDP policies take precedence over existing non-strategic policies in the Local Plan (paragraph 185 NPPF). There must be compliance with the EU Habitats and EIA Directives. The statutory regime also provides for planning permission to be granted through the medium of neighbourhood development orders ( NDOs ). These are orders granting planning permission for specified development or development of a specified class by a qualifying body. Where a parish council is established only the parish council can make NDOs. Where there is no parish council neighbourhood forums may exercise the same neighbourhood planning function. The order is made by the local planning authority as soon as is practicable after being approved by the qualifying body. However, the LPA is not subject to the duty if it considers that making the order would infringe any EU obligation or any rights under ECHR. An NDO may grant planning permission in relation to (i) all land in the neighbourhood area; (ii) any part of that land; and (iii) a specific site in the area. Certain development is excluded from the making of NDOs. This is basically the same as for NDPs. The actual process for making an NDO is lengthy and complex, including an independent examination. A qualifying body must apply to the LPA for designation of a neighbourhood area with a map and a statement stating why designation is appropriate. The LPA must advertise the application and take responses into consideration. It is likely that designations will follow parish boundaries. The LPA may also designate a neighbourhood area as a business area. The new regime includes a community right to build order ( CRBO ). This provides for community led development on a specific site. Such orders are also subject to independent examination and local referendum. Page 2 of 12

3 Question 2 Since the coming into force of Article 22 of the General Development and Procedure Order 2003, now Article 31 Town and Country Planning (Development Management Procedure) Order 2010 ( the DMPO 2010 ), local planning authorities ( LPAs ) were under a statutory duty not just to give reasons for refusing planning permission, but also to provide a summary of reasons for granting planning permission along with a summary of the policies and proposals in the development plan which are relevant to the decision. However, it is no longer a requirement to give reasons for approving a planning application unless the grant is subject to conditions. Article 31 DMPO 2010 provides that where conditions are imposed on a grant of planning permission the LPA must state in full the reasons for imposing each condition. If planning permission is refused the decision notice must state clearly and precisely the reasons for the refusal, specifying all the policies and proposals in the development plan which are relevant to the decision of the LPA. The duty to give reasons in refusing planning permission was required by the courts at a much earlier stage in the development of planning law, insisting, in particular, that LPAs should give all their reasons for refusal and not just some of them. In R v East Hertfordshire District Council ex parte Beckman (1998) the Council granted planning permission following two refusals. The permission was quashed for failure to provide satisfactory reasons for the volte face. The court held that the principle of consistency in public administration demanded that minutes should disclose clear and unambiguous reasons for such an about-turn. This was held to be particularly important where an LPA finds no reason for applying the policies contained in its development plan. A duty to give reasons is based on a number of factors. It is a basic ingredient of natural justice which gives legitimacy to administrative decision making (Ridge v Baldwin (1964). Moreover, the duty has functional basis in that it focuses the mind of the decision-maker in making his decisions. The text of reasons provided may also disclose that the decision-maker has made an error. The statutory duty should be discharged at the time the decision is taken (R (otao Macrae) v Herefordshire DC (2012) EWCA). Disappointed applicants for planning permission should be left in no doubt as to why they have been refused permission for development (or granted subject to onerous conditions) so that they can form a clear idea whether there is a basis for an appeal and the grounds on which any appeal may be formulated (Flannery v Halifax Estate Agencies (2000)). In Macrae the summary of reasons for granting permission was inadequate. The members overruled the officers recommendation, but the summary failed to make clear whether they considered the proposed development conformed to the development plan or whether they had granted planning permission in spite of the provisions of the plan. The reasons were poorly drafted and expressed and Elvin J criticised the officers for not recording properly the reasons given by Members when they rejected the officers recommendation. As to the use of extraneous evidence in elucidating reasons, it is permissible, for example, to cross-refer to the officers report if that fleshes out the summary of reasons provided to members (per Sullivan LJ in R (otao Wall) v Brighton and Hove City Council (2004) EWHC). However, reference to extraneous documents to which the officers report does not refer is not permissible e.g. where the minutes of the LPA s debates were not referred to in the summary. Sulllivan LJ Page 3 of 12

4 thus laid down the clear principle that contemporary extraneous evidence can be used only if there is a cross-reference to the summary itself. Where there has been a failure to give reasons the standard remedy is to quash the grant and order the LPA to reconsider the matter de novo and provide reasons. However, if a planning permission, albeit issued with defective reasons, has been implemented, in whole or in part, the court may simply grant a declaration that the summary of reasons failed to comply with the statutory requirement as in Macrae. It seems odd that the applicant should be able to proceed with a permission while the appellant is still trying to get the permission overturned. Technically, the appellant could have applied for an interim injunction, though it would probably have been turned down. The adequacy of reasons supporting a grant of planning permission subject to conditions was considered in R (otao Ling) v East Riding of Yorkshire Council (2006) EWHC. The court contrasted this situation with a refusal of permission where full reasons rather than a summary were required. Where a summary was appropriate, as in the case of a grant, the summary should not be formulaic; the individual circumstances of the case have to be considered properly. In the later case of R (otao Tratt) v Horsham District Council (2007) EWHC the court observed that it was insufficient to identify a policy without stating what it was about. Moreover, it was a case of stating the reasons for grant rather than the reasons for rejecting objectors representations. Question 3 (a) Under the Town and Country Planning (Listed Buildings and Conservation Areas) Act 1990 ( the LBA 1990 ) Listed Building Consent ( LBC ) is required for the demolition of a listed building or for its alteration or extension in a manner which would affect its character as a building of special architectural or historic interest. The procedure for obtaining an LBC is akin to that for planning permission, with some additional requirements as to consultation and publicity. The demolition or alteration of a listed building without consent or in breach of the conditions attached to consent is an offence under s9 LBA 1990 and is punishable by a fine and or imprisonment. The maximum fine is 20,000. In considering the amount of the fine the court is to have regard to any financial gain accruing from the offence. It is also an offence to demolish a listed building without giving notice to English Heritage. In both cases the offence is one of strict liability. The prosecution does not have to prove that the accused knew the building was listed (R v Wells Street Metropolitan Stipendiary Magistrates ex p. Westminster City Council (1986)). Under s38 LBA 1990 the local planning authority ( LPA ) may also issue a listed building enforcement notice specifying the steps to be taken: (i) (ii) (iii) for restoring the building to its former state; where such restoration would not be reasonably practicable, or would be undesirable, such further works as the authority consider necessary to alleviate the effect of the works carried out without consent; and for bringing the building to a state it would have been in if the terms and conditions of the listed building consent had been complied with. Page 4 of 12

5 The LPA must serve notice on the owner and occupier of the building and on any other person with an interest in it. Any of these may appeal to the Secretary of State ( SoS ) on a number of specified grounds, particularly (a) that the building is not of special architectural or historic interest; and (b) the matters complained of do not constitute a contravention of the LBA Failure to comply with the notice is punishable with a fine. The LPA may also carry out the work itself and recover the cost from the owner. The courts have considered whether it is legitimate to require a demolished building to be restored to its former state as, in fact, there is no building extant. R v Leominster DC ex parte Antique Country Buildings (1988) decided that such an order was legitimate where the materials for reconstruction were available. The LPA can also apply for an injunction under s44a LBA 1990 as in Derby City Council v Anthony (2008) where the building in question was in danger of imminent collapse. (b) The listing of a building does not confer on the owner any direct repairing obligation. However, the SoS and the LPA have two remedies if a listed building falls into disrepair. S54 LBA 1990 enables an LPA to take emergency action where a listed building is wholly or partly unoccupied and is in urgent need of repair. The LPA can enter seven days after giving notice to the owner and itself carry out any necessary work. It may the serve notice on the owner to recover the cost of the works. The judgment in R v Secretary of State for Wales ex p. Swansea City Council (1999) turned on whether the works in question were urgent as well as necessary. The fact that they were necessary appeared to be sufficient to uphold the Council. The SoS can take like action though English Heritage. The costs of such repairs are recoverable from the owner (s.55). In addition, where a listed building whether occupied or unoccupied is not maintained in a reasonable state of preservation the SoS or the LPA may under s47 LBA 1990 acquire the building by compulsory purchase along with any other adjacent buildings required for preserving the listed building. No action can be taken unless a repairs notice was served on the owner at least two month previously specifying the works necessary for the preservation of the building (s.48). The notice does not oblige the owner to carry out specified works. Compensation may be payable by the LPA if (a) an LBC would be granted after the alteration or extension of the building; or (b) the demolition of the building for the purpose of carrying out any development specified in Schedule 3 Part 1 Town and Country Planning Act The compensation payable is thus less than would be available in respect of non-listed buildings and will be reduced if the building has been permitted to fall into disrepair deliberately. The CPO can also contain a request for a direction for minimum compensation (s.50). Page 5 of 12

6 Question 4 An applicant aggrieved by a determination of the local planning authority ( LPA ) on a planning application may appeal to the Secretary of State ( SoS ) under s 78 Town and Country Planning Act 1990 ( TCPA 1990 ). The appeal is by way of written representations, informal hearing or public inquiry. The decision of the SoS is expressed as final (s79(5) TCPA 1990). A further challenge may be made under s288 on a substantive ultra vires grounds, but may not be challenged otherwise. The grounds of challenge under s288 TCPA 1990 are (a) that the decision was not within the powers of the Act i.e. ultra vires; and (b) that there was a failure to comply with the relevant requirements e.g. procedural requirements such under the Inquiry Procedure Rules. The powers of the court under this section were summarised in Seddon Properties Ltd v Secretary of State for the Environment (1978). The decision-maker must (i) (ii) (iii) (iv) not act perversely; not take in to account irrelevant material or ignore relevant material; abide by the statutory procedures; not depart from the rules of natural justice of which the basic rules are (a) the right to a fair hearing (audi alteram partem) and (b) not to act as a judge in one s own cause (nemo iudex in causa sua). The powers of the court are limited to quashing the decision: the whole decision is quashed and the SoS must look at the matter de novo. The right to challenge under s288 expires six weeks after the relevant decision and only persons aggrieved have standing i.e. (a) the appellant; (b) someone who took an active role in the appeal such as an objector; and c) someone who had a relevant interest in the land. (Times Investment Ltd v Secretary of State for the Environment (1991). Within six weeks of the decision the SoS has the power to correct a correctable error (Part 5 PCPA 2004). A person who does not have standing under s 288 may wish to have the decision of the LPA reviewed. This may be done by way of judicial review under s31 Supreme Court Act and Part 54 Civil Procedure Rules. Applications must be made to the Administrative Court as soon as possible but, following a recent procedural change, within six weeks of the disputed planning decision (though see the judgment of the European Union Court in Uniplex (UK) Ltd v NHS Business Services Authority (2010) ECJ). The Applicant thus must also have an arguable case and sufficient interest (standing). While statutory remedies must be followed in the first instance, the decisions of LPAs and the SoS are generally subject to the review and supervision of the courts by way of judicial review. The court is not concerned with the planning merits of determinations but with their legality, procedural or substantive. The remedies this affords in the Administrative Court are: (i) quashing order (formerly certiorari); (ii) a prohibiting order (formerly prohibition); and (iii) a mandatory order, formerly mandamus). In addition there are the remedies of declaration and injunction. Page 6 of 12

7 An application for judicial review may be made where conditions have been attached to a grant of planning permission which are considered to be unlawful. Finally, there is the Ombudsman remedy before the Parliamentary Commissioner for Administration or the Commission for Local Administration. However, they have no jurisdiction where there is a right of appeal to a court or tribunal save in exceptional circumstances. Question 1 SECTION B In determining the CLEUD application, the local planning authority ( the LPA ) concentrated here on s171b of the Town and Country Planning Act 1990 ( TCPA 1990 ) rather than on Class 13 Section I Schedule 3 Town and Country Planning (Control of Advertisements) (England) Regulations 2007 ( The 2007 Regulations ). S171B TCPA 1990 provides in relation to a breach of planning control that no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach. However, the real question is whether the facts of this case take it outside Class 13 in any event. The 2007 Regulations provide that the condition for deemed consent under Class 13 is: An advertisement displayed on a site that has been used continually for the preceding ten years for the display of advertisements without express consent. Tom claims that the requisite ten years have elapsed as the posts of the hoarding structure have remained in situ for that period. In Westminster City Council v Moran (1999) Simon Brown LJ thought it would be surprising if deemed consent were denied to a site where there had been periods, perhaps of some months, when the site had not been used for the purpose of advertisement. However, in Winfield v Secretary of State for Communities and Local Government (2013) EWCA the court took the view that there was a real difference between, on the one hand, an interruption caused by the taking down of an advertisement pending the posting of a replacement and a cessation in response to a threat of enforcement action, on the other. Subsequent resumption of the same activity constitutes a new chapter in the planning history (per Suppperstone J). He considered further that there would be a lacuna in the statutory system of planning control if there could be a break in immunity under s 171B TCPA 1990 and not under Class 13 of the 2007 Regulations. In my view, whether one is considering continual use or continuous use, the result must necessarily be the same. Thus the material breaks in the face of threatened enforcement action negate the continual use required in relation to Class 13. As to Tom s argument that the unadorned structure continued to be an advertisement and that consequently there were no breaks in the continuity, the court held in Winfield that the word advertisement had to be construed in accordance with section 336(1) of the Town and Country Planning Act During the period of cessation the unadorned structure was no longer in the nature of, and employed wholly or partly for the purposes of, advertisement and consequently it could not feed the continuance required by Class 13. If that interpretation was not correct it would mean that a landowner who erected a structure for eventual use for advertisement but who did not adorn it for ten Page 7 of 12

8 years would immediately obtain the benefit of Class 13 if he were to commence advertisement at the beginning of year eleven. The issue is one of fact and degree: i.e. was the interruption sufficiently material to break the period of uninterrupted user? As in this case the interruption was the threat of enforcement action the breaks were sufficiently material. It is interesting that in Winfield Sir Stephen Sedley LJ acknowledged that the court had used a purposive construction of the definition in s336(1) in order to make working sense of Class 13. He expressed the hope that departmental attention would be given to clarifying the legislation. Tom should be advised that should he appeal he would fail, as the law now stands. Question 2 Section 226(1)(a) of the Town and Country Planning Act 1990 ( the TCPA 1990 ) provides: (1) A local authority to whom this section applies shall, on being authorised to do so by the Secretary of State, have power to acquire compulsorily any land in their area- (a)the acquisition of which is suitable for and required to secure the carrying out of development, re-development or improvement on or in relation to the land; or (b) which is required for a purpose which it is necessary to achieve in the interests of the proper planning of the area in which the land is situated Section 226(1A) TCPA 1990 adds the caveat: But a local authority must not exceed the power under paragraph (a) of subsection (1) unless they think that the development or re-development or improvement is likely to contribute to the achievement of one or more of the following objects- (a) the promotion or improvement of the economic wellbeing of their area; (b) the promotion or improvement of the social well-being of their area; the promotion or improvement of the environmental wellbeing of their area. Compulsory Purchase Orders ( CPOs ) made under s 226 must be confirmed by the Secretary of State ( the SoS ). This scenario raises three issues: (1) how far a local authority may go in finding a solution to problems caused by the deterioration of listed buildings; (2) the extent to which a local authority may take into account off-site benefits offered by a developer; and Page 8 of 12

9 (3) The type of offers, if any, made by a developer which would infringe the principle or policy that planning permissions may not be bought and sold? It is clear that both schemes for the redevelopment of Site A would promote and improve the economic, social and environmental well-being of the Town provided the Council considered that the redevelopment was likely to contribute to the achievement of the well-being objectives set out in the subsection. The redevelopment of Site B could achieve those well-being objectives, but the question is whether those objectives properly fall within the compass of s226(1a) of the 1990 Act. The CPO covers only Site A and, therefore, it can be argued that despite the Section106 agreement between the Council and Frescos, the wellbeing benefits from the redevelopment of Site B should not come into issue. On the other hand it could be argued that if the redevelopment of Site A brought wider well-being benefits (i.e. at Site B), then they could be relevant. So can cross-subsidising be a material factor? The case of R v Westminster City Council ex parte Monahan (1990) suggested that it was. However, a power of compulsory purchase exercised for specific purpose must not be used for a different or collateral purpose (Simpsons Motor Sales (London) Ltd v Hendon Corporation (1964) AC). Off-site benefits can be taken into account in making a CPO as in Standard Commercial Property Securities Ltd v Glasgow City Council (No 2) (2006) HL where the developer indemnified the Council the costs of assembling the development site. However, these were costs flowing directly from the development. So is it the case that the only relevant off-site benefits are those which fairly and reasonably relate to the development in question? In Standard Commercial the two developments in issue were connected and the court decided that crosssubsidy was relevant but only where there was a composite development. That is not the case here. Furthermore, do the rules governing compulsory purchase follow the rules established in planning law? In planning law what is important is the nature of the necessary link between the development and the off-site benefit. Provided there is a link, the degree to which it affects the decision of the decision-maker is a matter for the decision-maker. i.e. provided the connection is more than de minimis. The question of what constitutes a material consideration is a matter of law but the weight to be given to it is a matter for the decision-maker (Pyx Granite Company Ltd V MHLG (1960) AC). Financial viability may be relevant provided it relates to the development in issue. Financial dependency may also be relevant in composite development. Finally, offsite benefits which are related or connected to the development may be material. But there must be a real connection between benefits and the development. In R (otao Sainsbury s Supermarkets Ltd) v Wolverhampton City Council (2010) UKSC Lord Collins opined that the planning constraints outlined above could and should be applied to CPO situations, provided the connection was real and not fanciful. The CPO power in 226(1)(a) must be capable of being exercised before 226(1A) comes into play. In this case the development of Site A will not in any legally relevant sense contribute to the well-being benefits which could flow from the development of Site B. So was the Council entitled to take the latter into account in making a decision under 226(1)(a)? The answer is in the negative as the Council would obtain wholly unconnected property benefits from the arrangement. Page 9 of 12

10 Roseburys should be advised that their legal challenge on an application for judicial review will be upheld. Question 3 There are two issues here. The first concerns whether, if approved and implemented, the planning permission would conflict with the purposes of Article 12 of the Habitats Directive 92/43/EEC ( the Directive ); and the second, whether the LPA should have required Diligance plc to submit an Environmental Impact Assessment ( EIA ). (a) On the first point, is it the duty of the local planning authority to determine whether, if approved, the proposed development would disturb protected species? The duty of the LPA in this scenario was to have regard to the requirements of the Habitats Directive in so far as they could be affected adversely by the exercise of their planning functions (Morge v Hampshire County Council (2011) UKSC). The LPA must be satisfied that, if permitted, the development will not offend Article 12. In the event that it does so offend the LPA must ask Natural England to permit derogation and grant a licence on the basis that there is an overriding public interest in the development taking place. The LPA can grant a conditional permission only if it considers that Natural England would grant a licence. It is not the function of the LPA to police Natural England s duty. The LPA did not need to decide for itself whether the development would or would not amount to such disturbance as to constitute a violation of Art 12(1)(b) of the Directive. The officers report to Members made it clear that they were advised to consider whether the proposed development would have an adverse effect on species or habitats protected by the Directive. That demonstrates that they had regard to the requirements of the Directive. Even if they did have to make an independent assessment there is no reason to conclude they would have reached a conclusion different from that of Natural England. The decision is for members not the experts. It is not the task of the LPA to do Natural England s job for them and Natural England had withdrawn its opposition. Accordingly, it is unlikely that the LPA acted unlawfully. (b) The development proposed is development falling within the description of Schedule 2 development under the Town and Country Planning Environmental Impact Regulations 2011 ( the EIA Regulations ) i.e. development which is likely to have significant effects on the environment by virtue of factors such as its nature, size or location. There is no evidence that Diligance plc has sought a screening opinion from the LPA under Regulation 5. In these circumstances the LPA had to screen the application itself. The LPA has three weeks to adopt a screening opinion. The question for the LPA was whether the development was likely to have significant effects on the environment by virtue of factors such as its nature, size or location and, accordingly, require an EIA. Likely connotes real risk and not mere probability. But if the LPA asks the right question and arrives at an answer within the bounds of reason, the decision cannot be categorised as unlawful. The issue here is finely balanced but it could not be said that the Committee s decision was Page 10 of 12

11 irrational in all the circumstances (R v Swale Borough Council ex parte RSPB (1991)). Bridget should be advised that should she pursue the proposed application for judicial review she would fail on both grounds. Question 4 a) The First Enforcement Notice (Notice A) Learned authors state that is well established that a material change in the use of a building or other land can occur through the intensification of an existing use. However, there is no decided case in which it has been found that there was a material change of use by intensification (per Sullivan J, as he then was, in R v Thanet District Council & Kent International Airport plc Richard Tapp & David Britton (2001) the concept can be expressed clearly enough (but) it is elusive in practice. It was thought at one time that the real issue was whether the use in question had intensified to such a degree that it had become materially different from what it was before (Birmingham Corporation v MHLG and Habib Ullah (1964). Intensification can occur through an increase in the amount of an activity (Peake v Secretary of State for Wales (1971). However, it is not sufficient to say simply that an existing use has changed because it has intensified. One material factor is the degree of intensification. Intensification which does not amount to a material change of use is mere intensification and not a breach of planning control (Kensington and Chelsea Royal Borough v Secretary of State for the Environment and Mia Carla Ltd (1981)). This proposition was accepted by Ousley J in Hertfordshire County Council v Secretary of State for Communities and Local Government (2012) EWHC where he agreed with the Secretary of State s Inspector that there had been no change in the definable character of the land. As a matter of fact and degree, the increase in throughput had not exceeded the normal fluctuations which might be expected at a scrapyard site. The court found that a material change of use by intensification requires not only an increase in the scale of activity on the site but also evidence that the consequences of the increase have brought about a change in the character of the use. Activities unrelated to the increase in scale were not material to the issue of whether a material change of use by intensification had taken place. It is also worth stating that there will be some cases where an intensification of use occurs but the intensified use remains in the same use class of the Town and Country Planning (Use Classes) Order 1987 ( the Use Classes Order ) (Habigi v Secretary of State for Communities and Local Government (2012) EWHC).One learned commentator said of the judgment that although it is unlikely that the Court of Appeal will remove even the theoretical possibility of a material change of use by intensification, the concept would appear to be close to extinguishment for any practical purposes of planning control. In the event, the Court of Appeal upheld the decision of the Secretary of State s Inspector and this case is probably now the locus classicus on intensification. b) The Second Enforcement Notice (Notice B) The replacement of the fragmenter will benefit from permitted development rights under Class B of part 8 of the Town and Country Planning (General permitted development Order) 1995 ( the GDPO ). This class gives permission for various works and installations used for industrial processes on industrial land. Page 11 of 12

12 The LPA has given no reason why planning permission should not be granted for the new shed extensions and in the absence of any such reason permission will be granted for them though they are probably covered by Class A of part 8 of Schedule 2 of the Use Classes Order. Although Parliament has taken scrapyards out of the scope of the use classes for the purpose of the Use Classes Order there has been no similar provision taking them outside the scope of the definition of industrial process for the purposes of the GPDO. There is no evidence that this situation was accidental rather than deliberate. There are sound reasons why Parliament would wish to prevent a change of use to a scrapyard by existing industrial sites, but there is a real difference when it comes to deciding whether existing scrapyards should have the benefit of permitted development rights. Provisions in the one order should not be read across to the other. It is clear that enforcement alleging intensification of use should be deployed with care and not used as a substitute for properly imposed conditions. Jane should be advised that she would succeed in an appeal to the Secretary of State under s 174 Town and Country Planning Act Page 12 of 12