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Not quite the same

An inspector dealing with an appeal against the refusal of outline permission for the redevelopment of buildings in the Surrey green belt with up to 20 dwellings draws our attention to the interpretation of Illustrative drawings (DCS Number 200-006-528).

With regard to the openness of the green belt, the appellant emphasised that the layout plan was illustrative and that the proposal was for “up to” 20 dwellings. The inspector reasoned, however, that if permission were granted, then it would permit something at least close to that number of dwellings. A planning permission for a considerably lower number would be materially different, he ruled. He explained that, put the other way around, an application for approval of reserved matters to be made pursuant to the outline proposal if permitted, would have to be for something numerically close to 20 dwellings, otherwise it would not be pursuant to that permission. It was therefore reasonable, he decided, to take the illustrative layout as something that would approximate to the form of development.

The following DCP section is relevant: 5.1313

Give cake a chance

We are wondering whether the planning system is getting a bit intolerant in its old age. We know that it is a matter of judgement as to whether or not to take action against a transgression of planning legislation, so shouldn’t there be a bit of latitude for business start-ups generally, and for cake specifically?

In (DCS Number 400-015-661) a retrospective application for cake fridges in the front garden of a house in Essex was dismissed. We appreciate that this arrangement might have appeared a little incongruous in the street scene. However, many a global corporation was founded in a garden shed. Bearing in mind that it had local support, was any way sought to support the business, in the interests of economic development and the Victoria sponge? Or are we sometimes a bit too ready to batter new enterprise?  

The following DCP section is relevant: 13.333

Just kidding around

Between ourselves, part of the fun of this job is in reading about the inventive and sometimes hilarious schemes people dream up to circumvent planning legislation. Here’s one you’ll like.

This case (DCS Number 400-015-641) involves an appeal against an enforcement notice requiring the removal of a goat shelter built on skids from agricultural land in Devon. The appellant contended that the shelter was a mobile field shelter that contravened no planning legislation. The planning authority, on the other hand, considered that the timber building constituted a building operation and was development within the meaning of s55 of the Act, and referred to the tests to establish whether a structure is a building on the basis of its size, permanence and attachment to the land (Barvis Ltd v SSE [1971] and Skerritts of Nottingham Ltd v SSETR [2000]).

In terms of size, the inspector considered that, at 7.2m by 3.6m, with an overhanging corrugated roof, the size of the shelter was not insignificant although it lacked a floor and was not attached to the ground by virtue of it being constructed on skids sitting on top of a bed of railway sleepers.

The appellant indicated that the shelter was currently sited in its original position and that previously it had been moved 6m to one side and 6m to the other side along the track created by the bed of sleepers. The inspector judged that this was a contrivance created solely for the purpose of demonstrating that the shelter could be moved and was very different from the usual type of moveable shelters such as mobile chicken or pig arcs which are moved for the benefit of the livestock and the land.  He explained that in the Skerritts case it was held that it is not the fact that a building is capable of being moved, but more of a question of how permanence is construed in terms of significance in the planning context. He reasoned that in this case, the visual and landscape impact would not be materially different whether the shelter was in the middle or at the end of the skids and consequently provided a degree of permanence not normally associated with genuinely mobile field shelters.

The inspector was satisfied that the shelter was of a size and significant degree of permanence to constitute operational development within the meaning of s55 and that planning permission was required.

The following DCP section is relevant: 4.3112 and 22.112

Prohibited development

More often than not, inspectors will strike out conditions removing permitted development rights, since Planning Policy Guidance advises that conditions restricting the future use of permitted development rights will rarely pass the test of necessity and should only be used in exceptional circumstances. In (DCS Number 400-015-542), however, an inspector decided that protection of the green belt provided those exceptional circumstances.

Outline planning permission had been granted for eight dwellings on a site in Warwickshire occupied by a collection of single storey workshops which were in a poor state of repair. The permission was subject to a condition removing permitted development rights in respect of enlargement, improvement or other alteration, additions to the roof or other roof alterations, porches, buildings incidental to the enjoyment of a dwellinghouse and the erection, construction, maintenance, improvement or alteration of a gate, fence, wall or other means of enclosure.

The inspector noted that the officer’s report associated with the original planning application stated that ‘with conditions to limit the extent of the built form’ it was considered the final development was unlikely to have a greater impact on the openness of the green belt and the purpose of including land within it than the existing development. The inspector  recorded that the PPG recognises that: ‘When used properly, conditions can enhance the quality of development and enable development proposals to proceed where it would otherwise have been necessary to refuse planning permission, by mitigating the adverse effects of development.’ He reasoned that if permitted development rights were exercised in the future, the individual and particularly the cumulative effect on the openness of the green belt could be significant. He considered that whilst the location of the site within the green belt might not, of itself, constitute exceptional circumstances, it was an important and relevant factor. The existing permission for eight detached dwellings on relatively generous plots provided significant potential for future extensions, additional outbuildings and other structures. The site was surrounded mainly by open fields rather than within a setting of significant existing development and it was away from the main town. Consequently, he found, the openness of the green belt could be significantly harmed by the exercise of permitted development rights.

The inspector concluded that a condition, albeit narrower than the original, that had the effect of controlling development which could be inappropriate in the green belt and detract from its openness was necessary and reasonable.

The following DCP section is relevant: 4.41 and 12.632


A ruling from an inspector who issued a lawful development certificate for a rear extension to a house in Northamptonshire (DCS Number 400-015-584) tells us that we can drop eaves from certain* permitted development calculations.

The council accepted that the extension complied with all the criteria and conditions of Class A, Part 1, Schedule 2 of the GPDO, other than criterion (i). To satisfy this criterion the extension must not be within 2 metres of the boundary of the curtilage of the dwellinghouse where its eaves height exceeds 3 metres, the inspector recorded. The side wall of the extension was not within 2 metres of the boundary of the curtilage, but the extended eaves of the roof of the extension was within 2 metres of the boundary and exceeded 3 metres in height. For this reason the council maintained that the extension did not comply with criterion (i) of Class A.

The inspector referred to the Technical Guidance to the GPDO. This refers to ‘any part of a proposed extension’ and the council regarded the extended eaves of the roof to be a part of the extension. The inspector reasoned, however, that diagrams and text of the Technical Guidance consistently refer to ‘walls’ as being the outer limits of permitted development. Furthermore, he noted, it is common practice for buildings to be measured, for setting out purposes and to assess their ground coverage, from the outer faces of their external walls. He added that measuring a building by taking into account eaves overhangs and gutters was imprecise. Also, an eaves overhang of a building or extension does not result in the building or extension being any higher than it would be without the overhang.

For all these reasons, he concluded, it is reasonable to assume that ‘any part’ of an extension refers to any external wall of the extension.  Therefore, the eaves overhang of the rear extension at the appeal dwelling could be disregarded to assess whether the extension complied with the provisions of Class A, Part 1, Schedule 2 of the GPDO.

The extension therefore satisfied criterion (i), and could thus be regarded to be permitted  development, he determined.

*Not all!

The following DCP section is relevant: 4.3421  

Flat earth theory

The not-infrequent ruling that a hard standing results in a loss of openness in the green belt and is therefore inappropriate development must cause some consternation for an appellant who is wondering how, when it’s only a few centimetres thick.

The inspector who explained that it is the use of the hard standing that causes the trouble is therefore to be commended (DCS Number 400-015-581). In this case an enforcement notice directed at a hard standing adjacent to a barn on a farm in Surrey was upheld. The inspector acknowledged that the area of hard standing by itself had a relatively minor impact on openness, being sited next to the barn and close to other buildings. However, it had to be viewed in the context of the likely use to which it was put, he said. The hard standing was occupied by several items of agricultural machinery and mobile attachments such as trailers and harrows, he observed. He judged that due to their solidity, height and bulk, they would not preserve the openness of the green belt. The planned storage of haylage on the area would add to the loss of openness and whilst this element of storage would be seasonal, in overall terms he concluded that the effect of the development on the openness of the green belt would be relatively permanent.

That explains it! Perhaps others might follow suit.

The following DCP section is relevant: 4.2513

Never heard of it

In referring to Dunnett Investments Ltd v SSCLG and East Dorset District Council [2016] an inspector dealing with an appeal against the refusal of a certificate of lawfulness to confirm the unfettered A1 retail use of a unit on a retail park in Newcastle has helpfully set out the judge’s summary of the law on conditions. Take a peek here (DCS Number 400-015-376).

A condition on the planning permission relating to the retail unit restricted the amount of floorspace which could be used for the sale of food. The appellant argued that because the condition did not specifically exclude the operation of the Use Classes Order the unit could operate as an unfettered A1 use.

The inspector observed that the principles set out by the judge were straightforward and clear especially “planning conditions should be construed in a common sense way so that the court should give a condition a sensible meaning if at all possible”. In the inspector’s view the condition was unequivocal, it stated that there should be no food sales from the shop units except as described in the condition. No other interpretation of the condition was possible, he ruled, it being entirely unambiguous. The appellant nevertheless argued that regardless of the wording, because the Use Classes Order was not mentioned it could not be excluded and no reasonable person would assume it was excluded. The inspector held that this missed the point; not many reasonable people would have even heard of the Use Classes Order, never mind understood its application. A reasonable person, he decided, would simply understand the condition to be controlling food sales.

The inspector concluded that the condition could only be read so as to preclude the operation of the Use Classes Order as far as the sale of food was concerned, within the terms set out in the condition.

The following DCP section is relevant: 4.4261 and 13.14   

Lights, camera, action!

Though it might appear that it’s all glamour in town planning those of us in the business understand that there is a lot of technical know-how involved behind the scenes. An appeal case concerning the refusal of a certificate of lawfulness for the use of a property in south London for a mixed use as a dwelling and a photoshoot and film location (DCS Number 400-015-391) illustrates the point. In this case the inspector considered whether the use had achieved immunity from enforcement action.

The house had been constructed in the 1960s and was complete with original fixtures, fittings and decoration typical of the period. Because of its originality and décor, the appellant had been able to offer the property for use as a film shoot location in conjunction with its primary use as a family home, and had done so at various intervals since February 2005. It was only in October 2015 that the council advised, after complaints by nearby residents, that a material change of use had occurred.

The inspector explained that in Secretary of State for the Environment, Transport and the Regions v Thurrock BC [2002], it was established that for an unlawful use to obtain immunity from enforcement action, it has to be exercised continually and without significant interruption for the whole of the relevant time period. He acknowledged that a mixed use had occurred since 2005, but judged that it had been intermittent, there having been significant gaps in the use of the property for simultaneous use as a dwelling house and as a photo shoot location. In particular, the council referred to three periods of four months, three months and five months when the photoshoot activities did not take place. The inspector further explained that the court had rejected the notion that time (for the purpose of the four- or ten-year rule) could continue to run where a use (or mixed use) became dormant for long periods. In the case before him the mixed use of dwelling and photo shoot location was dormant not just for the significant periods referred to by the council, but for noticeable periods each month when the property reverted to its residential use only.

The court had also held, the inspector continued, that the legally correct question to ask was whether a building had been used throughout the whole of the relevant period so that, at any time during that period, the council could have taken enforcement action. The appellant argued that the council could have taken enforcement action at any time during which the mixed use was taking place. The inspector agreed that this was the case; the council could have taken action the first time that the change of use occurred and any time after that when each photoshoot use was being carried out. He reasoned, however, that the situation had alternated between a single use and a mixed use, and that each time a photoshoot took place a breach of planning control had occurred.

The inspector concluded that the mixed use was intermittent and that, as a matter of fact and degree, it was not a continuous mixed use for the whole of the relevant period. Therefore, the appellant had not shown that the mixed use had been continuous for the necessary ten-year period and it followed that a certificate of lawfulness should not be issued.

The following DCP section is relevant: 4.535

Downside up

In an appeal case which is likely to turn the planning world on its head (DCS Number 400-015-553) an inspector awarded costs against a council in Cheshire, determining that it had not substantiated why the “so called upward overlooking” from the porch/shelter at a proposed dwelling would actually result in occupiers being able to look directly into the first floor rooms of the neighbouring house.

The following DCP section is relevant: 4.136

A lose-lose situation

Over the last few decades we have been quietly nursing the opinion that the civil servants charged with drafting planning legislation, before they even consider putting pen to paper or digit to keyboard, should be compelled to serve a period in a local authority planning department. Then, they might gain some insight into the difficulties that can arise for the poor souls who have to put their output into practice.

Explaining the legislation which led to the inspector’s decision in (DCS Number 400-015-484) to the appellant, for example, might prove a valuable learning experience.

This case concerns an appeal against the refusal of a certificate of lawfulness for a single storey rear extension to a house in a Bath suburb. Readers will be aware that any external finish not of similar appearance to the existing house is excluded from being permitted development by virtue of paragraph A.3(a) of Part 1 to Schedule 2 of the GPDO. The house is constructed of reconstituted stone with timber cladding and the appellant wished to construct the extension in matching materials. However, the house is within the World Heritage Site, where development is not permitted under paragraph A.2(a) if it would consist of or include the cladding of any part of the exterior of the dwellinghouse with stone, artificial stone, pebble dash, render, timber, plastic or tiles. Therefore, the extension would not be permitted development and would require planning permission.

The inspector remarked that the argument put forward by the appellant that this cannot have been intentional is simply not tenable. Sorry sir, we think it is.

The following DCP chapter is relevant: 4.3421