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Pester power

Those of us who are parents know that it can be very hard not to just give in to pester power, and we are wondering if this might give us the background to (DCS Number 400-015-070).

In this case, an inspector upheld an enforcement notice directed at the keeping of horses in the back garden of an end terrace house in Essex.

There was no dispute between the parties that the two horses were pet animals for the enjoyment of the occupants of the dwellinghouse. The inspector pointed out, however, that it is established law that a purpose incidental to the enjoyment of a dwellinghouse should be interpreted as reasonably incidental and not on the unrestrained whim of the occupier. She observed that the surrounding area was residential and high density and that the rear garden was relatively small. The horses did not graze in the garden and were walked regularly through the garden to nearby land, she noted. The wooden building in which the horses were housed did not take up the majority of the garden but she found that it was nevertheless a significant building in its residential context and highly prominent from and in close proximity to its residential neighbours. She had no reason to doubt the neighbour who described the occasional negative impact of the close proximity of the horses on her living conditions by reason of odour.

The inspector concluded as a matter of fact and degree that the keeping of horses was not for a purpose incidental to the enjoyment of the dwellinghouse. Consequently, the stable building did not benefit from permitted development rights and required planning permission.

Remember this tale when your little angel is pleading for a pony of their own.

The following DCP chapter is relevant: 12.8

Not dead yet

Despite the withdrawal of the Code for Sustainable Homes (CSH) in March 2015 an inspector has refused to delete a condition requiring a development in north London to achieve Level 3 of the Code, finding that it was a ‘legacy’ case (DCS Number 400-014-991).

‘Addressing climate change remains a central tenet of government planning policy. The means of doing so, insofar as the construction of new dwellings is concerned, may have changed since the grant of the original planning permission, but that does not negate the validity of the disputed condition, the development plan policy basis for it or what it seeks to achieve’, the inspector ruled.

This might be good news for the planet, but it contrasts with the decision we reported in Code for Sustainable Homes condition deleted. In that case, (DCS Number 400-009-897), the inspector decided that a condition requiring Level 4 of the Code to be achieved could be deleted following the withdrawal of the CSH. We have to presume that the inspector decided this was not a ‘legacy’ case.

That being so, reports of the death of the CSH have been greatly exaggerated.

The following DCP chapter is relevant: 4.412

Negative thoughts

In GPDO overrides use condition we reported an appeal case in which an inspector found that a condition stating that ‘the premises shall be used only for purposes falling within Class B1’ did not prevent the exercise of GPDO rights to convert the former barn to a dwelling. A recent court case, Dunnett Investments Ltd v Secretary of State for Communities and Local Government 29/3/17 appears to support his view.

In the case before the Court of Appeal a condition imposed on the office development stated “The use of this building shall be for purposes falling within class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the local planning authority first being obtained.” The judge ruled that in interpreting a planning condition which was said to exclude the operation of the order, three factors are relevant. Firstly, a planning condition can exclude the application of the GPDO. Secondly, exclusion might be express or implied, but a grant for a particular use cannot in itself amount to an exclusion. Thirdly, to exclude the application of the GPDO, the words used in the relevant condition, when taken in their full context, must clearly evince an intention on the part of the local planning authority to make such an exclusion. In his view, the condition excluded planning permission granted by Parliament under the terms of the GPDO. He opined that the first part of the condition set out the scope of the permission and the phrase “and for no other purpose whatsoever” was a clear and specific exclusion of GPDO rights.

The lesson here, perhaps, is that in order to withdraw permitted development rights by means of a condition it’s best to be negative – the condition needs to say “and for no other purpose whatsoever”. A positive construction – “shall be used only for purposes…” isn’t going to be enough.

The following DCP chapter is relevant: 10.3131

Seen off in court

In See you in court we reported East Hertfordshire council’s intention to challenge an inspector’s decision to overturn its refusal of prior approval for a residential barn conversion under Class Q of the GPDO. They did, they lost.

The council was concerned that the conversion would result in a dwelling in an isolated location, pointing to paragraph W(10) of Part 3 of the GPDO, which required it to have regard to the National Planning Policy Framework as if the application were a planning application; and Paragraph 55 of the NPPF states that local planning authorities should avoid new isolated homes in the countryside. The High Court judge decided, however, that to apply the NPPF’s policies with the same rigour in respect of accessibility of residential development to the Class Q prior approval process as would be applied to an application for planning permission for residential use would potentially frustrate the purpose of the introduction of Class Q, namely to increase the supply of housing through the conversion of agricultural buildings which by definition would very frequently be in the open countryside. The fact that an agricultural building was in a location where planning permission would not normally be granted for accessibility reasons would not amount to a sufficient reason for refusing prior approval. [East Hertfordshire DC v Secretary of State for Communities and Local Government 9/3/17].

The following DCP section is relevant: 4.3423

Total rubbish

In Important work we expressed astonishment that a S106 planning obligation had been required in order to secure the provision of a wheeled bin. With hindsight, we should have realised that we were only a short trundle away from a situation in which the lack of a S106 planning obligation to secure the provision of a wheeled bin would prevent development. But here we are:-

In (DCS Number 400-014-958) an inspector found a proposed site for a new dwelling to be a suitable location for housing in the countryside. He was also satisfied that the proposal would be an acceptable form of development having regard to the risk of flooding and the effect on the character and appearance of the area. An obligation to provide a contribution for a wheelie bin, however, was incomplete and flawed, and would not therefore take effect. That, he decided, was the prevailing consideration.

In our opinion here on the Blog, an outcome in which an otherwise satisfactory development is held up for want of £73.65 towards a wheelie bin has got to be total rubbish.

The following DCP section is relevant: 4.61

That word again

Valued. That’s the word we are having trouble with. In Value judgments we asked how to recognize a ‘valued landscape’ in relation to Paragraph 109 of the NPPF. In Paragraph 70 we meet ‘valued’ again:

“To deliver the social, recreational and cultural facilities and services the community needs, planning policies and decisions should…..guard against the unnecessary loss of valued facilities and services, particularly where this would reduce the community’s ability to meet its day-to-day needs.”

How are ‘valued facilities’ defined? What might constitute a valued facility? Because, something must be valued by someone. In other words, there must be a certain level of subjective analysis, despite the best efforts of the courts to apply objective analysis to the definition of valued landscapes. With this in mind we thought it would be helpful to highlight an appeal decision in which the inspector decided that a care home can be defined as a valued facility (DCS Number 400-014-805). The inspector acknowledged that no guidance is provided as to how to determine what makes a community facility “valued” (in respect of Paragraph 70 of the NPPF). However, she agreed with the council, that in providing care and accommodation for members of the community who are no longer able to live independently, care homes can be considered to be a valued facility, which provide for the day-to-day needs of residents.

The following DCP section is relevant: 11.3

Glamorous camping

Since glamping is a relatively recent phenomenon it might be helpful to note an inspector’s ruling that glamping pods need to be treated as static caravans.

In (DCS Number 400-014-852) the appellant argued that the proposed pods were not caravans and therefore did not conflict with development plan policy, which presumed against the development of new static caravan sites in the county given that there was already sufficient provision. The inspector disagreed. Whilst pods are not specifically legally defined he agreed with the council that they fall within the statutory definition of a caravan, that is, any structure designed for human habitation which is capable of being moved from one place to another. The appellant had confirmed that the pods would be kept permanently on the site, that they would be ready assembled when delivered and that they would be connected to an electricity supply. To the inspector’s mind the pods were akin to static caravans, notwithstanding their different appearance and their limited living accommodation. The proposed development would therefore be in conflict with development plan policy, he decided.

The following DCP section is relevant: 24.2

Important work

Taken from a recent appeal decision (DCS Number 400-014-884):-

“A signed and completed S106 Unilateral Undertaking has been submitted by the appellant. It would secure financial contributions from the appellant of £73.65 towards the provision of wheeled bins for the development. The Huntingdonshire Developer Contributions SPD 2011 sets out the requirements and justification for Council to secure contributions towards appropriate householder waste storage containers on development sites. I therefore agree that a contribution would be necessary, directly related, and fairly and reasonably related in scale and kind to the proposed development, in accordance with Community Infrastructure Levy Regulation 122, and Paragraph 204 of the Framework.”

A S106 for a wheelie bin!?!? We have harped on about this before, in What a waste, but have we really got nothing better to do?

The following DCP section is relevant: 4.61

Comeuppance

Comeuppance – a delightful old word which, according to the Oxford English Dictionary, derives from ‘come up’ in the sense of coming up before a judge or court for judgement.

It seems appropriate to say, then, that an appellant seeking prior approval under Part O of the GPDO for the residential conversion of a building in Essex which had been in unlawful use as a hostel (DCS Number 400-014-790) got their comeuppance when an inspector judged that it was the actual use rather than the lawful use on the relevant date which mattered.

In order to meet the requirements for permitted development as outlined in the GPDO, the building must have been in a use falling within Class B1(a) on the trigger date of 29 May 2013, the inspector recorded. The appellant acknowledged that the building was in use as a hostel on the that date. The inspector agreed with the appellant’s counsel that the lawful use of the building on that date was Class B1(a). She disagreed, however, that the unlawful hostel use should be disregarded for the purposes of the appeal. Whilst she appreciated the appellant’s argument that the permitted development right was introduced to allow the conversion of empty or underused offices to dwellings, it nonetheless remained that the lawful use was office use whereas the actual use had been as a hostel. Consequently, she concluded that the building was not in office use on the trigger date, as required by the GPDO.

The inspector concluded that the appeal did not meet the criteria set out in the GPDO. As such, it could not be considered to be permitted development for assessment under the prior approval process.

The following DCP section is relevant: 4.3423

Nothing in life is certain

For those of us who thought that the decision in Oxfordshire County Council v Secretary for State for Communities and Local Government and others [2015] had settled the argument about whether councils are entitled to claim monitoring fees in relation to Section 106 agreements, the inspector’s decision in (DCS Number 200-006-210) makes discomfiting reading.

In this decision the inspector acknowledged that the judge in Oxfordshire County Council had taken the view that the inspector in the case before her was entitled to conclude that the costs of administration and monitoring for the discharge of its functions under section 106 of the 1990 Act would be included in Oxfordshire County Council’s resources and budget.

However, after careful reading of the court judgment the inspector in (DCS Number 200-006-210) came to the conclusion that “…in considering the Section 106 Agreement submitted to it and in exercise of its planning judgment, the Council was entitled to take the view that monitoring fees were necessary to make the development acceptable in planning terms. That will always be a matter of planning judgement based on the particular facts of each case and would need to be justified on a case by case basis.”

For more detail on this read paragraphs 28 to 31 of the inspector’s decision in respect of the appellant’s costs claim.

The following DCP section is relevant: 4.6