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The GPDO and Convention rights

A gliding club’s successful challenge to approval of a residential barn conversion under the GPDO may have potentially significant implications under the Human Rights Act, writes Jenny Wigley.

In Coventry Gliding Club Ltd, R (On the Application Of) v Harborough District Council & Anor [2019] EWHC 3059, a judgment handed down earlier this month by Mr Justice Swift, Coventry Gliding Club were successful in their judicial review challenge to Harborough District Council’s grant of prior approval for a residential barn conversion next to their airfield. The change of use of the barn to a dwelling is permitted development under Class Q of Part 3 of Schedule 2 to the General Permitted Development Order (GPDO) but this is subject to an application for prior approval under paragraph W of that Schedule.

The sole access to the proposed new dwelling is an existing right of way across the Gliding Club’s operational runway. That right of way is currently used only for agricultural access by the local farmer. The Club’s concern was that converting it into an access for a dwelling, with use by residential occupiers, visitors and deliveries would cause serious safety risks. As noted in the Judgment, the runway is in regular use for both taking off and landing and, with gliders’ limited ability to change course, any potential conflict with pedestrians or vehicles would be likely to cause a crash.

Similar applications for full planning permission for the change of use had been previously refused by the council for reasons relating to noise impacts and the safety of the access across the runway. Despite this, the council failed to take those previous decisions into account and failed to consider either the noise impacts or the safety impacts of increasing the use of the right of way across the runway. The Club succeeded in its challenge to the council’s prior approval decision for failing to take into account these material considerations as part of assessing “whether the location or siting of the building makes it either impracticable or undesirable for the building to change from agricultural use to use as a dwelling” under para Q.2(1)(e) of Part 3 of Schedule 2 to the GPDO.

The Club further succeeded in its claim that the council had unlawfully taken into account an irrelevant consideration, namely a ‘fall back’ position that was merely theoretical. And the council was also found to have failed to comply with the requirement (under paragraph W(8)(a) of Part 3 of Sch 2) to display a site notice near to the application site. The site notice had been fixed some 900m away, insufficiently ‘near’.

But, perhaps the most interesting aspect of the case is what will be the appropriate remedy. By reason of the provisions of Article 7 and paragraph W(11) of Part 3 to Schedule 2 of the GPDO, a quashing order is unlikely to be sufficient to afford the Club an effective remedy. A quashing order alone would not necessarily prevent the development from being able to proceed under the default rules in paragraph W(11) and the Club contends that this would result in a breach of its Convention rights under Article 6 and Article 1 of Protocol 1 to the ECHR. In these circumstances the Gliding Club submits that words should be read into the legislation under section 3 of the Human Rights Act 1998, or alternatively that the provision in the GPDO should be declared incompatible with Convention rights under section 4 of the Act. The Secretary of State has been invited to intervene and the issue of appropriate remedy has been adjourned to a later date, so watch this space!

Jenny Wigley is a barrister at Landmark Chambers. She is acting for the gliding club.

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