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Crystallisation

‘Fraid we’re not talking about anything sparkly here. No, this is to do with the commencement of development. You might wish to make note of a distinction highlighted by an inspector in a recent appeal (DCS Number 200-007-575).

“… the case law which culminates in Orange PCS v Islington establishes that a permitted development right crystallises when commencement occurs. This right will not therefore be lost if a new development order comes into force.”

“In the case of prior approval, the rights crystallise when the prior approval is granted or deemed to be granted by the Council, not when development has commenced.”

More detail can be found in paragraphs 18 and 19 of the decision.

Section 4.34 of DCP Online concerns permitted development.

A ludicrous situation

When a planning inspector finds himself explaining that “We are forced into this somewhat ludicrous situation by the wording of the various Orders and Planning Acts ….” we must be in a serious mess. However, this situation arose in an appeal against an enforcement notice directed at a barn conversion on a farm in Worcestershire (DCS Number 200-007-575). The sequence of events leading to the appeal is this:

In 2014 the owner of the farm applied for prior approval to convert the barn to a dwelling. There was some dispute as to whether this was granted or the council failed to issue a decision, but in any event it was not disputed that prior approval was obtained. Before works began the farm was put on the market and sold at auction to the appellant with prior approval for a dwelling. The new owner then made two further prior approval applications in 2015 and 2016. These were refused by the council as they did not consider the land was in agricultural use on 20 March 2013 as required by Q.1(a)(i) of Part 3 of the GPDO. Believing he still had a valid prior approval from 2014 the new owner began work on the conversion as one of the conditions attached to the permission was that works must begin within three years of the grant of prior approval.

Having reviewed the evidence the inspector was not convinced that the agricultural use had ceased, as claimed by the council. He therefore concluded that the land was in agricultural use on 20 March 2013 so the prior approval was for permitted development. Having established the 2014 prior approval was granted by default and was for permitted development, the next question, he reasoned, was whether it was ever implemented. Works had certainly started within the three-year period but, as the council pointed out, the resulting building was quite different from that shown in the plans provided with the 2014 prior approval. The overall design had changed from a cottagey to a contemporary feel. The external appearance of the building was materially different from that shown on the plans, the inspector ruled, and he therefore concluded that it had not been converted in accordance with the 2014 prior approval application. It was common ground that the time limit for that application had expired and therefore the converted barn was unauthorised.

However…..it seemed to the inspector that while the works to convert the barn were unlawful, those works closely followed the applications made in 2015 and 2016. Those applications had been refused by the council who had mistakenly believed the land was not being used agriculturally at the required time, and neither refusal had been appealed. Had either of those applications been granted, as it seemed they should have been, the inspector reasoned, then the barn conversion would have been lawful.

Summing up the current situation, the inspector explained that if the appellant carried out the requirements of the enforcement notice to turn the dwelling back into a barn he would then be entitled to make another prior approval application under Class Q of the 2015 GPDO, which the council would not be able to refuse. He remarked that they were forced into this somewhat ludicrous situation by the wording of the various Orders and Planning Acts and, had there been a ground (a) appeal (a deemed planning application) he would have had no hesitation in allowing it. Because there was no ground (a), however, he found that the only way out of the impasse was for the appellant to make a s78 planning application showing the barn as converted. He extended the compliance period to twelve months in order to enable a planning application to be made and determined.

Ludicrous: absurd, ridiculous, farcical, laughable, risible, preposterous, foolish, idiotic, stupid, inane, silly, asinine, nonsensical.

Changes of use under Part 3 of the GPDO are covered at section 4.3423 of DCP Online.

Whatever happened to….

….Advertisement Appeals Inspectors?

The chief executive of the Planning Inspectorate has explained that a large part of the reason for the current delay in the handling of planning appeals is “the unexpected receipt of more than 1000 prior approval appeals for phone kiosks”. We can see how the jam has built up if DCS Number 400-018-743 is anything to go by. In this case an experienced inspector has taken over four sides of A4 to determine an appeal against the refusal of prior approval for a call box. No doubt Euro Payphone Limited was happy to have one of PINS’ top people dealing with its appeal but was it really necessary? The DCP Blog remembers when PINS had a small team of specialist Advertisement Appeals Inspectors. Given that it is no secret that the interest in phone kiosks arises largely from their function as structures for the display of advertisements, wouldn’t it be an idea to allocate a SWAT team of specialist inspectors to deal with the phone kiosk appeals?

Just an idea.

Part 16, Class A of the GPDO is set out at section 4.3429 of DCP Online and examples of telecommunications appeal cases can be found at section 28.1.

A fine line

An inspector determining an appeal against the refusal of planning permission for a new house on a paddock in Buckinghamshire (DCS Number 400-018-714) was faced with the not-unusual task of interpreting the meaning of a thick black line on the development plan proposals map. Here is how this inspector dealt with the problem:

“The appellant states that the ‘built-up area within the Green Belt’ designation (the ‘built-up area designation’) should be taken to include all land within the outside of the black boundary line shown on the Proposals Map and has supplied an enlarged plan to demonstrate the extent of this. However, whilst I recognise that the thickness of this line makes it difficult to be precise as to where the built-up area starts and finishes on the Proposals Map, it is my view that the intent of the draftsman and policy-makers concerned would have been to provide a recognisable and logical boundary that follows a combination of existing features on the plan and physical features on the ground. Furthermore, I am also of the view that the exact position of a boundary line in circumstances such as this is a question of planning judgement for the decision-maker, having regard to the submitted evidence and their own on-the-ground assessment.”

This seems like a sensible approach to us, and in this case the inspector decided that the boundary line for the built-up area accorded with a post and rail fence that divided the appeal site from the neighbouring dwelling. Wouldn’t it be a good idea, though, to delineate built-up area boundaries with a fine line in the first place?

Further appeal cases concerning disputed land use boundaries can be found in section 4.2 of DCP Online.

We said that

In November last year we said “it must be time to consider an amendment to Part O to require minimum floorspace provision”, in a Blog which highlighted the potential for substandard office-to-residential conversions under permitted development rights (Sauce for the goose).

A recent report from RICS – Extending Permitted Development Rights in England – has concluded in the same vein. The study found that the office-to-residential permitted development rights, introduced in 2013, have “produced a higher amount of poor-quality housing than schemes governed through full planning permission”.

The report suggests that office-to-residential change of use “should not be counted as permitted development in England”, or, if that would be a step too far, that government “might instead consider introducing more safeguards to the prior approvals process”. These might include “adding minimum space standards which would apply even to PDR schemes”.

As might be expected from such an illustrious body, the RICS study is a well-presented and illuminating document and we urge you to take a look.

Section 4.3423 of DCP Online sets out Part 3 permitted development rights and section 7.4338 concerns internal space standards.

Going underground

If you are looking for a way to maximize householder permitted development rights a recent appeal case in Kent (DCS Number 400-018-680) might be of interest. In this case an inspector granted a lawful development certificate for an underground games room and swimming pool, deciding that the works comprised permitted development.

The council’s reason for refusal was that the proposed works comprised an engineering operation and therefore did not benefit from permitted development rights. The inspector agreed that the works comprised an engineering operation, but reasoned that it did not follow that they did not benefit from permitted development rights. She pointed out that engineering operations are not specifically excluded from permitted development rights under the GPDO.

The inspector acknowledged that Class A of  the GPDO does not expressly refer to underground alterations to dwellinghouses. Nevertheless, she considered that the enlargement, improvement or other alterations of a dwellinghouse for the purposes of the GPDO is reasonably capable of being interpreted as including an underground structure.

The council argued that as the underground structure did not sit directly below the dwellinghouse it was not a basement and therefore not within Class A. The inspector found nothing in the GPDO or the Technical Guidance that supports this argument. She agreed with the appellant that location directly below a building is not a prerequisite to the common sense and dictionary definition of basement as ‘a set of rooms below the surface of the ground’. With regard to Class A the inspector concluded that the works amounted to the enlargement, improvement or other alteration to the dwellinghouse, noting that there was no dispute that any of the conditions or limitations of Class A were not met.

Turning to consideration of the proposal under Class E of the GPDO, the inspector judged that in comparison to the dwellinghouse the footprint of the proposal was not excessive. She reasoned that a swimming pool by its very nature will occupy a sizeable area and found that the games room was not an excessively large space for its proposed use. Given the size of the planning unit she concluded that the size and scale of the proposed structure would not be disproportionate nor excessive for its stated purpose.

The inspector decided that, whether a development falling within Class A or Class E, or both, the council’s refusal to grant a certificate of lawful use or development in respect of a reinforced concrete structure with all works below ground level was not well founded.

Section 4.3421 of DCP Online is the place to find further information on GPDO Part 1 permitted development.

 

Sounds of the city

An interesting ruling on the intention of Class O of the GPDO with regard to noise impacts has come up in a recent appeal decision (DCS Number 400-018-679).

This case involved a prior approval application for the change of use of the upper floors of a building in west London from office use to 30 flats under Schedule 2, Part 3, Class O of the GPDO. The inspector identified the main issue as being whether the proposal would provide adequate living conditions for its intended occupiers by way of the impacts of noise from commercial premises.

The inspector acknowledged that the site was located on one of the main thoroughfares into the town centre. He emphasised, however, that Class O of the GPDO concerns noise from commercial premises. He considered that this means that the noise must emanate from the commercial premises. Whilst he accepted that this includes noise from associated servicing and from customers, he ruled that it does not stretch to include more indirect sources of traffic noise such as from people and vehicles being attracted to a commercial centre, or using one of its main thoroughfares. He saw no compelling evidence that when the GPDO was amended to account for noise from commercial premises that it was intended to cover such a broad range of traffic use.

The inspector concluded that, subject to a noise mitigation condition, the proposal would provide adequate living conditions for its intended occupiers by way of the impacts of noise from commercial premises.

Information about office to dwelling conversions under Part 3 of the GPDO can be found at Section 4.3423 of DCP Online.

Comic sans

An inspector has sided with a council in Cambridgeshire in the reading of a handwritten dimension on a plan relating to planning permission for the change of use of agricultural land to garden land (DCS Number 400-018-548).

The appellants maintained that the height of the boundary fence was given as 7m whereas the council said it was marked as 1m. In upholding an enforcement notice requiring the reduction in height of the 1.5m high fence to 1m the inspector ruled that the figure was the number one written with a serif. She found that it did not look like the number seven which would usually have a far more pronounced top stroke. Moreover, she found it implausible that an application would have been submitted for a 7m high fence since it would be extraordinarily high, especially to enclose a small area of residential land on a street corner.

The inspector also noted that a retrospective planning application for the development with the existing fence had been refused planning permission in 2016. She reasoned that such application would have been unnecessary if the appellants had already sought and obtained planning permission for a fence up to 7m high as suggested. It also struck her as odd that such application had been made merely to “save the blushes” of the council’s planning department.

Tall tales?

Additional cases involving disputed plan dimensions can be found at section 6.32 of DCP Online.

 

Changed circumstances

In dealing with an enforcement appeal concerning the use of land in Hertfordshire as a wedding venue (DCS Number 200-007-514) an inspector has pointed out the potentially significant implications for green belt policy arising from draft changes to the NPPF.

Here is what he says:

“…on 05 March, the Government published a consultation draft of a revised NPPF. The general approach to development within the Green Belt is largely unaltered. However, under paragraph 145(e) of the consultation document the material change of use of land would not be inappropriate so long as the use of land would preserve the openness of the Green Belt and not conflict with the purposes of including land within it.

Due to the way in which the NPPF is structured ‘very special circumstances’ are required to justify a development that is inappropriate by definition i.e. one that does not fall within the limited number of exceptions. That is a high bar to overcome. The suggested policy change would have significant implications in respect of the material change of use of land, subject to the assessment on the openness of the Green Belt and the purposes of including land within it. If, such a change of use was not inappropriate there would be no need to demonstrate very special circumstances and, undoubtedly, the planning balance of material considerations would shift accordingly.”

You heard it here first.

Section 4.251 of DCP Online concerns green belt policy.

Not going to happen

A replacement dwelling in the green belt in Hertfordshire has been rejected at appeal, an inspector declining to take unexpended permitted development rights into account to justify a larger dwelling (DCS Number 400-018-395).

The existing dwelling was a modest single storey bungalow. The inspector found that the end result would be a building that was materially larger in volume, bulk and mass than that which presently existed on the site. The development would therefore be inappropriate development in the Green Belt as it was not within one of the exceptions in the closed list in paragraph 89 or 90 of the Framework, he determined.  

The appellant, however, claimed that the unexpended permitted development rights afforded to the existing dwelling were a legitimate fallback position and should be taken into account when assessing whether the proposal was materially larger than the building it sought to replace.

In turn, the inspector cited the words of the judge in Athlone House Ltd v SSCLG [2015] when considering paragraph 89 of the Framework “… it would not affect the baseline which was the basis of comparison set out in paragraph 89 [of the Framework]. Paragraph 89, as I have already observed, is clear; an unbuilt permitted development which a developer may be keen to implement could not, on the basis of the interpretation of the plain words of the policy, be included in such an assessment. That is not to say that such a material fallback would be irrelevant. It would probably be relevant at the stage of considering the question of very special circumstances, taking account of the weight to be attached to it bearing in mind the likelihood of its implementation and the extent of its impact on openness if it were developed”.

Accordingly, the inspector acknowledged that the unexpended permitted development rights were not irrelevant to the appeal before him. He noted, however, that the appellant had stated that the “condition of the property was poor and substantial investment would be required to not only secure structural integrity for future-proofing but to ensure that there was adequate thermal efficiency for sustainable modern-day living” and that the “long-term value of the property and its fit-for-purpose status is questionable”. On that basis the inspector found it highly unlikely that the appellant would go to the expense of carrying out extensions and alterations under permitted development rights to then demolish the building and erect the replacement sought. As such, he gave the unexpended permitted development rights limited weight.

There is comprehensive coverage of green belt policy at section 4.251 of DCP Online and rural reconstruction and replacement is discussed at section 9.63.