Fill out the forms, Mr Clarke

Observations on house arrest

Is it possible that Charles Clarke's proposals to put suspected terrorists under house arrest will be defeated, not by the majesty of parliament, but by an obstacle of exquisite banality: the Town and Country Planning Acts?

If the Home Secretary wants to convert a private house into HMP Dunroamin, say lawyers, that constitutes a change of use under planning law and requires planning permission. All the precedents suggest he wouldn't get it.

"A residential property is in a specific use class of its own," says Douglas Evans, head of planning and environment at the leading London law firm Addleshaw Goddard. "To change that use from one class to another requires an express granting of planning permission, unless there's a specific exemption in the planning legislation, and there's certainly not one here."

If a domestic residence were converted to a small prison, whether on a temporary or permanent basis, the local council planning authority could take out an enforcement order against the unlawful change of use. Or, says Evans, it could seek an injunction against the Home Office for flagrantly breaching planning legislation. If the council failed to act, neighbours could apply for judicial review. "Even the person who is subject to the restriction order, who probably wouldn't have much money, given that we're probably not talking about Acacia Avenue here, would probably be able to apply for legal aid to go all the way with this," Evans also says.

Another possibility for the incarcerated person, as well as for the neighbours, is to investigate the property's title deeds, which may themselves state some restriction on how it is used. Evans thinks it might be possible to find "something in the deeds entitling the owner to peace- ful enjoyment of possession". He also believes that turning a man's house into a dungeon against his will might leave Clarke open to prosecution for official theft. "It's almost compulsory sequestration of someone's property without benefit of compensation," he says.

Another property lawyer, Bob Prit- chard, senior associate at the interna-tional law firm Eversheds, agrees with Evans that a change of use from a pri- vate dwelling to a prison would require planning consent. He quotes a proposal in 1997 to convert a house into a bail hostel in a residential street in the West Midlands town of Aldridge.

The case established that the creation of fear among neighbours could be taken into account. "People . . . were concerned that the hostel could be the cause of potential antisocial behaviour, with the police having to visit at all hours. Obviously, there could be similar anxieties over a street prison with constant police surveillance - and the discomfort that entails for neighbours."

Clarke could, like anyone else, pop down to the local planning office, hand over the £220 fee, and seek proper per-mission for the change of use. But it is hard to imagine him sitting up into the small hours, scratching his bristle over the obligatory four-page form, produ-cing detailed floor plans and posting site notices to explain that the house is to be used as a prison. And whose name would he insert into the planning-form box marked "agent"? John Scarlett, perhaps, the ever-obliging head of MI6 and keeper of all those terrible secrets?

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