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Late news

Taken from a recent appeal decision in which the council is defending a claim for costs (DCS Number: 200-006-036):

“….the first time the Council was put on notice about this was on the Monday before the Inquiry opened when it received Mr Harwood’s skeleton.”

Dead funny.

PINS slips up

Hopefully, this was a one-off, since we hold the Planning Inspectorate in the highest regard, but just in case it wasn’t readers might wish to be alerted to this apology from an inspector under Preliminary Matters in a recent appeal (DCS Number 200-006-021) in order to make the appropriate checks.

‘At the Inquiry it emerged that a number of local residents had made written representations direct to The Planning Inspectorate [PINS] but that these had not been circulated to either main party and had not been placed before me. On behalf of PINS I apologised for this inaction and I formally do so again now. I have asked my colleagues to instigate an investigation so that lessons can be learnt to avoid such a situation reoccurring.’

The following DCP section is relevant: 5.34

The significance of layout

We thought this snippet was interesting for the considerable (unprecedented?) emphasis placed on the importance of urban grain. The case (DCS Number 400-014-146) concerns an appeal against the refusal of listed building consent to create an off-road parking area at a grade II listed former mill worker’s cottage in an area designated as a World Heritage Site.

The inspector noted that the mill workers’ cottages, dating from the late 18th century, were important assets due to their connection with a noted local family and the unique role which the area played in the development of the textile industry and the early factory system. He considered that, even though it was proposed to build a replacement wall further into the site, the loss of the frontage wall to facilitate off-road parking would erode the well-preserved character of the cottages, not only by the introduction of a hard standing but also by the physical loss of the boundary wall to the listed property in its original position. Furthermore, he noted that the World Heritage Partnership had stated that the walls, as curtilage features, had a significance equal to that of the cottages themselves, and that the loss of part of the historic boundary pattern would be harmful to the Outstanding Universal Value of the WHS.

The following DCP section is relevant: 4.372

Two wheels good, four wheels bad

After his recent unfortunate brushes with the cycling community the secretary of state for transport might be interested in a planning inspector’s view that a cycle is a vehicle (DCS Number 400-013-998).

Readers might be aware that towards the end of last year footage emerged of Mr Grayling opening the door of his ministerial car directly in front of a cyclist. After dusting himself off the cyclist appeared relatively unscathed but the minister was nonetheless criticised for his failure to exchange details. We all make mistakes, even transport ministers who might be expected to have some knowledge of highways law, but he did not improve matters by commenting in an interview with the London Evening Standard not long afterwards that cycle lanes can cause problems for road users. ‘We are road users!’ screamed the cyclists.

In (DCS Number 400-013-998) the inspector had to decide whether a proposed fence would be adjacent to a highway used by vehicular traffic. A ‘Redway’ ran alongside the boundary of the property, she noted, the term ‘Redway’, being a term applied to a network of shared use paths in Milton Keynes generally surfaced with red tarmac, and dedicated as cycleways open to public use by means of pedal cycles or on foot only. The inspector recorded that ‘No definition of ‘vehicular traffic’ exists either within the GPDO, the 1990 Act or the Highways Act 1980. In the Road Traffic Act 1988, a “cycle” is interpreted to mean a bicycle, a tricycle, or a cycle having four or more wheels, not being in any case a motor vehicle (section 192).’ Yet, she reasoned, there is nothing to suggest that for the purposes of the GPDO, the term ‘vehicular traffic’ is confined to motorised vehicles. Although a ‘vehicle’ will often have an engine, she noted that an ordinary definition of the word does not exclude other forms of vehicle and she found no reason to suppose it should be interpreted so restrictively when applying the GPDO. From the viewpoint that a cycle is a mode of transport which provides a means for the rider to travel, it seemed to her that it is a vehicle. Use of the Redway by cyclists would thus amount to use by vehicular traffic.

The following DCP section is relevant: 4.3422

On a literal interpretation

Sometimes it is reassuring to note that our planning system has achieved a degree of sophistication such that it can uphold the intention of the law in the face of a literal interpretation of the law, as the appellants found out in (DCS Number 400-014-015).

In this case the owners of a previously extended semi-detached house in Hertfordshire applied for a lawful development certificate for a further side and rear extension which would have a 50mm gap to the house. An inspector found it quite clear, however, that the retention of a gap that served no obvious design or practical purpose was no more than a device to circumvent the limitations of the GPDO. The 50mm gap was de minimus since it served no useful purpose whatsoever other than to artificially separate the elements of the extensions so as to try to invoke the GPDO provisions for building extensions that quite clearly went well beyond what the GPDO intended to exclude from detailed control, he thundered. He concluded that the proposal would not be development permitted by the GPDO and it followed that the council’s decision to refuse to grant an LDC was well founded.

The following DCP section is relevant: 4.3421

A spectrum of wrongdoing

In considering an appeal against an enforcement notice directed at the residential conversion of a barn on an Essex farm an inspector was called on to apply the principles of the Welwyn judgment which hold that no-one should be allowed to profit from his own wrong: the public policy principle. Readers might wish to cut out and keep paragraphs 29 to 32 of this decision (DCS Number 200-005-982) since they set out the four features of deception which take development outside the scope of immunity from enforcement, and which might involve ‘a spectrum of wrongdoing’.

In the case before him the inspector was sympathetic to the personal circumstances of the appellant. It appeared to the inspector that the appellant’s decision to convert the barn was driven by the strong emotional response to the loss of his partner (with whom he had shared the occupation of a caravan) rather than as a pre-planned act of development. He held it likely that the appellant would have understood that planning permission was required to convert the barn but he appreciated that compliance with planning regulations might not have been at the forefront of his mind in the weeks following the tragic death of his partner, when the work was undertaken. He concluded that the conversion appeared to have been driven by a spur of the moment reaction as opposed to a deliberate attempt to deceive the planning system.

The following DCP section is relevant: 10.1513

Error message

An enforcement notice issued by a council in Bedfordshire has been declared a nullity because it had the wrong signature (DCS Number 400-013-893).

The enforcement notice was signed by the council’s Principal Solicitor, the inspector recorded. The appellant had provided an extract of the council’s Constitution. The inspector noted that there was a general scheme of delegation to Directors and the Chief Executive, and a specific scheme of delegation authorising particular post-holders to undertake specific functions. ‘Principal Solicitors’ were given delegated authority to prosecute for offences and to authorise any officer of the council to appear in court. The delegation was limited to those functions, she noted, and it was the Development Control Manager who was given delegated authority to issue and serve enforcement notices. Therefore, it was the council’s Development Control Manager who had authority to issue the notice and not the Principal Solicitor.

The inspector concluded that the notice was issued by the Principal Solicitor without the requisite authority and was thus ultra vires. That being so, she declared the notice a nullity for lack of proper authority.

Councils might wish to check their procedures.

The following DCP section is relevant: 4.5321

Evil clown to be sited in Oxfordshire

No, this isn’t to do with the creepy clown sightings of 2016. This is far worse. Ronald McDonald will be appearing in the Oxfordshire countryside following an inspector’s decision to grant permission for a restaurant and drive-through adjacent to the A43 (DCS Number 200-005-976).

The appellant had carried out a sequential test to support the application as required by Paragraph 24 of the NPPF, the inspector recorded. Interestingly, however, she reasoned that the purpose of the sequential test is to demonstrate that there are no alternative sites within a town centre or edge of centre locations, and given that the purpose of the development was to provide roadside facilities for motorists on the A43, which by definition is unlikely to be within a town centre, the sequential test was of little relevance to the appeal. The council nevertheless maintained that there was no need for a food outlet on the site as it was adjacent to a filling station and less than a mile from a service station at a junction on the M43. The council argued that as Paragraph 31 of the NPPF states that the primary function of roadside facilities should be to support the safety and welfare of the road user, it also requires a demonstration of need. The inspector answered, however, that ‘where need is not the primary function, Paragraph 31 of the Framework does not prohibit the provision of roadside facilities.’

No, we can’t make sense of this either, but fear it heralds a lot more garish nightmares.

The following DCP section is relevant: 16.238

A good day to bury bad news?

Governments of all complexions have long been guilty of publishing potentially unpopular information under cover of significant events so perhaps the DCS team ought not to have been surprised at the quantity of mahoosive decisions published by the secretary of state on the Friday before Christmas. However, if DCLG hoped we would be too busy dragging a Christmas tree through the snowy streets whilst tossing farthings to barefoot orphans to alert our clients to these significant cases it would be disappointed. Oh no. We reported them on the day. And just in case you, dear readers, were too busy dragging a Christmas tree etc etc we reported them again after Christmas. And just to make the point, DCLG, that these things do not go unnoticed, here they are again:

Published on 23/12/16:

Up to 380 dwellings allowed in Leeds (DCS Number 200-005-958)

Up to 370 dwellings allowed in Leeds (DCS Number 200-005-957)

Circa 150 dwellings allowed in Leeds (DCS Number 200-005-956)

60-65 dwelling dismissed in Stafford (DCS Number 200-005-960)

Solar farm dismissed in Lancashire (DCS Number 200-005-959)  

Published on 22/12/16:

Up to 200 dwellings dismissed in Gloucestershire (DCS Number 200-005-951)

In anticipation of any claim that the publication of this number of secretary of state decisions in a single week is entirely normal – no, it isn’t. We’ve got the figures.

The following DCP section is relevant: 3.15

Don’t panic

On realising that a decision notice has been sent out in error it might be tempting to fire off a corrected version in the hope that it will put things right. It won’t – as the council discovered in (DCS Number 400-013-894).

The Dorset council initially issued a decision notice granting planning permission for a new house. The council contended at appeal that this was issued in error. The council subsequently issued a second decision notice, dated the same date, refusing planning permission. It was on the basis of this notice that the appeal was lodged.

The inspector explained that Sections 97 to 100 of the Town and Country Planning Act 1990 set out the powers available to revoke or modify a planning permission. This includes the provision that, if it appears to the local planning authority that it is expedient to revoke or modify a planning permission, they may by order do so, to such an extent as they consider expedient. He recorded that this formal procedure did not appear to have been undertaken by the council in the case before him. He concluded that the initial decision notice remained valid and the second decision notice, despite being issued to rectify an administrative error, was not valid. Consequently, there was no power of an appeal against the second notice and he took no action on the appeal.

The following DCP section is relevant: 6.21