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Cultivating equality

We know that planning inspectors are not heartless people so it must be very difficult for them when they feel compelled to deploy an all-too-familiar piece of text. This runs along the lines of “Whilst I have given these personal circumstances careful consideration, I am mindful of the advice contained in Planning Policy Guidance that in general planning is concerned with land use in the public interest. It is also probable that the proposed development would remain long after the current personal circumstances cease to be material.” [Translation: The building will be there long after your frail parent/disabled child is dead so I’m really sorry but I’m going to have to dismiss this one.]

Thank goodness, then, for the Equality Act 2010, which came to the aid of an inspector dealing with a proposal in Lincolnshire for a building and the use of land to support a land skills programme for young people with special needs (DCS Number 400-014-546). The intention was that the site would provide a programme where the students could learn about planting, seeding, growing, compost manufacture and general site maintenance. The inspector considered that the building was an urbanising feature within the rural area and therefore harmed the character and appearance of the countryside. On that basis the proposal conflicted with national and local planning policy, she found.

Nevertheless, the inspector was able to turn to the Public Sector Equality Duty (PSED) contained in section 149 of the Equality Act 2010, which sets out the need to eliminate unlawful discrimination, harassment and victimisation, and to advance equality of opportunity and foster good relations between people who share a protected characteristic and people who do not share it. She reasoned that since the appeal was made for the use of the building for training/activities for people with a disability, it was for people who shared a protected characteristic for the purposes of the PSED. With this in mind she decided that the social benefit of the scheme outweighed the harm to the countryside and the conflict with development plan policy. She accepted that the viability of the scheme had not yet been proven so granted permission for three years in order to allow the project time to prove itself.

The following DCP section is relevant: 4.175

We need to talk about Airbnb….

…because it’s getting bigger all the time and we need to set boundaries.

An appeal against an enforcement notice directed at the use of an outbuilding in the Lake District for letting through Airbnb (DCS Number 400-014-522) is a case in point. The appellant contended that the building was effectively an additional bedroom to the main house and was let only occasionally through Airbnb. Having examined the information on the Airbnb website, however, the inspector came to the conclusion that a material change of use had occurred and therefore a breach of planning control had taken place. He upheld the notice.

For those not familiar with Airbnb, the name originates from air-bed and breakfast. Those with a spare room, an outbuilding or indeed a whole unit of accommodation can advertise it on the website for holiday letting. Clearly, there are planning implications, perhaps not least for the traditional tourism industry. Very often the planning system finds itself having to catch up with developments in the real world. Maybe this time we ought to recognise what is happening right in front of us and discuss what our approach ought to be. Anybody out there up for some dialogue on this?

The following DCP section is relevant: 9.5

Remote access

Readers living and working in rural areas and struggling with their phone signal might be interested in a recent appeal decision in which the inspector recognised the economic and social benefits of decent telecommunications infrastructure (DCS Number 400-014-533).

The appeal was made against the refusal of planning permission for a 16m high telecommunications column in the green belt north of Leeds. The inspector ruled that the column would be inappropriate development in the green belt since it was not listed as an exception under Paragraph 90 of the NPPF. She held that it would result in limited harm to the openness of the green belt since it would introduce a very small amount of built development where currently none existed. She also found that it would be a somewhat obtrusive manmade feature within the landscape and would result in some harm to the character and appearance of the countryside.

The inspector recorded, however, that 4G coverage was virtually non-existent for large parts of the area, and that the parish council had expressed support for the proposal, saying that phone reception was not good. She made reference to paragraph 42 of the NPPF which says that advanced, high quality communications infrastructure is essential for sustainable economic growth and that the development of communications networks also plays a vital role in enhancing the provision of local community facilities and services. She concluded that the public benefits of the proposal would amount to the very special circumstances sufficient to justify permitting the proposal.

The following DCP section is relevant: 28.138

First written warning

Rumour has it that planners have a tendency to keep quiet about their profession at parties, and given some of our colleagues’ behaviour on occasion it isn’t hard to see why the public perception of the planning profession is not always as elevated as it might be. Three cheers to the planning inspector who recently upbraided a council for its poor behaviour in making an unsubstantiated costs claim.

The council had made an application for a full award of costs in relation to an appeal made against an enforcement notice (DCS Number 400-014-405). The inspector noted, however, that it had not offered any reason why the mere act of submitting the appeal might be said to constitute unreasonable behaviour. In fact, he said a bit more: “In fifteen years as a Planning Inspector this is the most pathetic application for costs I have ever had the misfortune to have to adjudicate on.” He continued that in the context of a statutory right of appeal it would be quite extraordinary for him to make an award of costs against an appellant merely because they had exercised their right of appeal. He further noted that inspectors can use their powers to make an award of costs where they have found unreasonable behaviour, including in cases where no application has been made. He had personally never exercised that power but had seriously considered whether to do so having regard to: the council’s failure to attend the site visit; its introduction of new policies that were not quoted on the face of the notice; its apparent misunderstanding of national policy; and, there being, at the very least, a question as to whether a more helpful approach could have resulted in the appeal being avoided. Put bluntly the application for costs was so frivolous as to be a complete waste of public resources, he concluded.

The inspector decided, nevertheless, to exercise his discretion not to initiate an application for costs but warned the council to take his comments on board to avoid any prospect of such an award being made in the future.

They can’t say they haven’t been warned.

The following DCP section is relevant: 6.12

A close match?

Readers dealing with domestic extensions will be aware that Condition A.3(a) of Schedule 2, Part 1, Class A of the GPDO requires the materials used in any exterior work to be of a similar appearance to those used in the construction of the exterior of the existing dwellinghouse. The Technical Guidance for Householders offers guidance on what this ought to mean in practice but to some extent the meaning of ‘similar appearance’ must be drawn from precedent. On this basis, a recent appeal case in southwest London (DCS Number 400-014-332) is of interest.

The inspector noted that the Technical Guidance states that the condition is ‘intended to ensure that any works to enlarge, alter or improve a house result in an appearance that minimises visual impact and is sympathetic to existing development. This means that the materials used should be of similar visual appearance to those in the existing house, but does not mean that they need to be the same materials. For example the external walls of an extension should be constructed of materials that provide a similar visual appearance – for example in terms of colour and style of brick used – to the materials used in existing house walls.’

The council contended that the extension which had been added to the rear of the terrace house was not permitted development because the materials did not have a similar appearance to those of the exterior of the existing dwellinghouse. The inspector acknowledged that the extension was rendered whereas the rear elevation was yellow brick. Indeed, she acknowledged that there was no render at the rear on any of the rest of the terrace. She pointed out, however, that the first floor of the front of the house was rendered.

The inspector reasoned that there is no mention in the GPDO of matching materials being limited to those on the elevation to which an extension is to be attached. Consequently, she found that the extension did meet the wording of condition A.3(a) when given its literal interpretation. She issued a certificate of lawfulness accordingly.

Do readers have any thoughts on this?

The following DCP section is relevant: 4.3421

Born in a barn

In Defending the sustainability test for barn conversions the Blog highlighted the illogicality of there being different sustainability criteria for barn conversion proposals according to whether they require prior approval or planning permission. In a recent case in Sussex (DCS Number 400-014-208) the appellant succeeded in using the fallback of a prior approval for residential conversion of a barn as a lever to gain planning permission for replacement with a new dwelling, and in so doing showed just how pointless this difference in treatment is.

The inspector recorded that the barn was a utilitarian steel-portal structure with walls and roof of corrugated sheeting. As such he considered that it was of no particular architectural merit save for being consistent aesthetically with functional agricultural buildings.

He noted that prior approval had been granted for the change of use of the barn to a dwelling in 2015. The proposal before him involved the demolition of the barn and the erection of a differently designed dwelling in place of that permitted via the 2015 permission.

In relation to suitability of location he identified the central difference between the development proposed and that permitted as essentially being confined to the provision of one additional bedroom. In his view the effect of this change in respect of the intensity of domestic use and consequently use of private vehicles was likely to be highly limited. Indeed, he remarked, works that affect only the interior of a building are not development, and as such there was nothing before him to indicate that a third bedroom within the permitted dwelling could not have been created without the need for express planning consent, in any event.

The inspector acknowledged that the overall form of the proposed dwelling was more intricate, and thus to some extent more domestic in appearance than the permitted scheme, which made use of the existing understated barn structure. However, he observed that there were a number of dwellings within the immediate environs of the appeal site and as such held that the proposal would not appear incongruous in this context.

The inspector concluded that the proposal before him would result in no significant effects in relation to the suitability of the location for residential development compared with the scheme permitted via the 2015 permission.

This all tells us that the current prior approval system for barn conversions leaves the door wide open for gaining planning permission for demolition and residential redevelopment via a two-stage process.

The following DCP section is relevant: 10.1361

A horse of a different colour

Taken from a recent appeal decision (DCS Number 400-014-301):

“At paragraph 10 of the Council’s appeal statement it refers to the “Gelding judgement” [sic]; this has not been queried by the Appellant. However I anticipate that the Council does not wish me to form a sensible opinion about a castrated male horse, but that it is in fact referring to the case of Timmins & Anor v Gedling Borough Council [2014] EWHC 654 (Admin) [my emphasis].”

Incidental to the enjoyment explained

Judging whether a Class E outbuilding ought to be considered ‘incidental to the enjoyment of the dwelling’ is not always easy, so readers might wish to note an appeal case in which the inspector sets out the considerations which should be taken into account (DCS Number 400-014-199).

The inspector explained:

“It is necessary to consider proposals in the particular context within which they would be situated; an outbuilding that may be considered incidental to the enjoyment of a substantial dwelling with many occupants and large grounds may not be incidental if situated in the garden of a small cottage with a single occupant. Size alone is not necessarily a determining factor and a wide range of outbuildings, for different purposes may be permitted under Class E, depending on the specific circumstances. Those principles have been established through the Courts, including the cases of Emin and Wallington. The Courts have also established that the term ‘required’ should be interpreted as meaning ‘reasonably required’.“

The case before the inspector concerned the refusal of a certificate of lawful development for the construction of two detached outbuildings within the curtilage of a property in Hertfordshire. He noted that the appellant and his wife would be the only permanent occupants, remarking that the sheer scale of the facilities would appear to be way in excess of what could be considered reasonably required as an incidental use for a dwelling that would be occupied by two people. He observed “The indoor bowling green would equate to the provision of a full sized bowling rink per occupant. Similarly, the size of the indoor cinema ….could not reasonably be said to be for a purpose incidental to the enjoyment of a dwellinghouse that is occupied by two people.”

The inspector further explained that with regard to Class E, the Technical Guidance states that a purpose incidental to a house would not cover normal residential uses, such as separate self-contained accommodation nor the use of an outbuilding for primary living accommodation such as a bedroom, bathroom, or kitchen. In other words, if the use of a space was fundamental to the ordinary day-to-day functioning of the dwelling it would not be incidental but part of the primary accommodation. The appellant’s suggestion that the large viewing screen in the cinema room would be used in the evenings almost every day for the purpose of watching films and television, as an alternative to watching a smaller television in the lounge, indicated to the inspector that the cinema room would, in effect, be used as an extension to the primary accommodation, very much like an additional lounge, as opposed to an incidental use. As such, it would fall outside the scope of permitted development rights granted through Class E, he determined.

The following DCP section is relevant: 4.3421

Achieving retail objectives

Those with an interest in the retail sector will know that development plan policy generally seeks to ensure that the vitality and viability of district centres is protected and that it is not undermined by changes of use from retail use. The loss of a retail unit in a north Wales shopping centre has been allowed by an inspector, however, after he decided that conversion of the former newsagent’s with attached dwelling to three dwellings would be preferable to long-term vacancy (DCS Number 400-014-214).

The inspector reasoned that the existing retail unit was exceptionally modest in size and that its loss would not harm the overall quantum of retail floorspace within the centre as a whole. He also found that the quantity of vacant units in the district shopping centre materially harmed its vitality and viability. He further reasoned that replacing a vacant building with three dwellings would assist in supporting the vitality and viability of nearby commercial premises. He concluded that the proposal would accord with the objective of development plan policy.

We have noticed, here on the Blog, that when an inspector concludes, not that a proposal accords with policy, but that it accords with the objective of policy, the decision is likely to be worth a closer look. We are not convinced that this one bears scrutiny but what do readers think?

The following DCP section is relevant: 13.732

Is there a loophole in Class P?

Prior approval for the conversion of two floors of a warehouse in Sussex to nine flats has been turned down at appeal, an inspector finding that the size of the building would exceed the 500 sqm floor space limitation set out in Schedule 2, Part 3, Class P of the GPDO (DCS Number 400-014-157). Whilst the inspector found that external walls must be included in calculations of floor space under this class there appears, nonetheless, to be an unresolved question arising from the absence of reference to cumulative maximum floor space figures.

The appellants gave the total floor space of the building as 489 sqm, based on estimating the internal floor area from scaled layout drawings excluding the external walls. The inspector found it notable that Class P is the only class in Part 3 which refers to ‘gross floor space’ rather than simply ‘floor space’. She recorded, however, that ‘gross floor space’ is not defined. To her mind the use of the word ‘gross’ suggested that the walls should be included in any measurements of the building, particularly in the absence of any reference to cumulative floor space which appears in connection with other classes of development. If this approach were adopted there would be no doubt that the gross floor space figure would significantly exceed the 500 sqm threshold, she concluded.

The appellants were not giving up without a fight, however, and suggested that, in the absence of reference to cumulative maximum floor space figures under Class P, prior approval for the change of use could be sought under two separate applications, one for each floor. This would ensure that the floor space limit would not be exceeded on either floor. “Whilst that may or may not be the case” said the inspector, “the proposal would have to be a significantly different layout to the appeal scheme”. No sooner said than drafted, we suspect.

The following DCP section is relevant: 4.3423