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Not there yet

After decades of tweaking you would think that the GPDO might have achieved near-perfection, such that only good quality design would escape the need for planning permission. Not so, sadly, as a recent appeal case in east London indicates (DCS Number 400-017-938).

The inspector found that “the dormer would appear as a dominant and disproportionate addition, which would sit awkwardly against the modest scale of the host roof” and “As such the scale, position and bulk of the dormer would unbalance the appearance of the host dwelling and would be conspicuously at odds with the largely simple and generally unaltered roof-scape…. “

The inspector concluded that the scale and position of the proposed rear dormer would be harmful to the character and appearance of the host building and the locality and consequently contrary to development plan policy. He recorded that Section 38(6) of the Planning and Compulsory Purchase Act 2004 states that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise. Accordingly, he decided that “The ability and likelihood that within the permitted development rights in the GPDO a very similarly positioned and scaled rear dormer could be constructed with comparable effect on the character and appearance of the locality, is a material consideration. In this instance it signals a determination other than in accordance with the adopted development plan and consequently, the appeal succeeds.”

Oh dear.

Permitted development as a fallback position in house extension proposals is covered at section 12.233 of DCP Online.

The deserted house

An inspector has decided to refuse a certificate of lawfulness for the residential use of two brick and stone buildings in Somerset (DCS Number 200-007-253), after deciding that the residential use had been abandoned. There had been no residential occupation of the buildings since 1958, he noted.

In considering the case the inspector usefully set out the case law on abandonment. He recorded that ‘abandonment’, is a legal concept used by the courts to describe the circumstances in which rights to resume a use which has been lawfully carried on in the past may be lost because of the cessation of that use. It was established in Panton and Farmer v SSETR & Vale of White Horse DC [1999], however, that a use which was merely dormant or inactive could still be ‘existing’ so long as it had already become lawful and had not been extinguished. Nevertheless, in Hartley v MHLG [1970], Lord Denning found that if a building or land remains “..unused for a considerable time, in such circumstances that a reasonable man might conclude that the previous use had been abandoned, then the Tribunal may hold it to have been abandoned”.

The inspector also recorded that In The Trustees of Castell-y-Mynach Estate v Taff-Ely BC [1985], the court established four criteria for assessing whether a use had been abandoned. These are: (1) the physical condition of the buildings; (2) the period of non-use; (3) whether there has been any other use; and (4) the owner’s intentions. In Hughes v SSETR & South Holland DC [2000] the Court of Appeal held, on the authority of Hartley, that the test of the owner’s intentions should be objective and not subjective. In this regard the test was the view to be taken by “a reasonable man with knowledge of all the relevant circumstances”.

Applying these principles to the appeal before him, the inspector considered that the physical condition of each building was very poor (1). He noted that there had been no active residential occupation for a period of approximately 58 years to the date of the application (2). He was satisfied that ad hoc and temporary use of the building for agricultural storage was inconsequential in terms of whether the primary residential use had been abandoned, and it was accepted by the council that there has been no other intervening use from 1958 to the date of the application (3).

The inspector acknowledged that the owner had treated the buildings with respect and care as a family heirloom to keep and maintain for future generations. However, that he physically maintained the buildings as structures could be consistent with abandonment or non-abandonment of the residential use of the buildings, the inspector reasoned. Rather, it indicated to him the likelihood of a long term desire that the buildings should be used residentially by following generations of the family (4).

In drawing all the factors together the inspector found it unlikely that the owner had any actual intention throughout his own life to continue residential use of the buildings. In his view the balance of the evidence indicated a greater likelihood that the owner abandoned the use long before his death in 2007 and hence before the date of the application.

For more on abandonment of use see 9.611 of DCP Online.

Suspicious minds

An inspector declined to issue a certificate of lawful development for the construction of an outbuilding in the rear garden of a house in Buckinghamshire, nonetheless finding that the council’s approach to the application was wrong (DCS Number 400-017-686).

The parties agreed that the outbuilding would fully meet size and other limitations within paragraph E.1 of Class E of the GPDO, the inspector noted. The single point of dispute was whether or not the outbuilding would be “required for a purpose incidental to the enjoyment of the dwellinghouse as such”, in order to be considered permitted development. The council maintained that the scale, size and internal layout of the building could easily be adapted for independent living purposes and so it could not be considered to be incidental to the enjoyment of the dwellinghouse.

The inspector ruled that this was the wrong approach in deciding whether a building would be incidental for the purposes of Class E. He explained that the council’s fear that the building could be adapted to become an independent dwelling house was irrelevant. In the event that the outbuilding were to be used in the way the council feared, such that it would amount to a breach of planning control, the council could exercise its enforcement powers.

Nevertheless, he recorded that it was for the appellant to demonstrate that the proposed uses would remain ancillary or subordinate to the main use of the property as a dwellinghouse, and that the floor space allotted to the proposed uses were reasonably required in order to accommodate them. In this regard he found that there was very little explanatory information to demonstrate that the outbuilding would be incidental. Given the considerable size of the building and based on the minimal evidence provided, he was not persuaded that the uses could not be provided in a more modest sized building. Hence the appellant had failed to demonstrate that the outbuilding would be reasonably required for purposes incidental to the enjoyment of the dwellinghouse such that it would be permitted development within Class E of the GPDO.

Part 1 permitted development is covered at section 4.3421 of DCP Online – Development within the curtilage of a dwellinghouse.

The meaning of life

You can’t say that planning isn’t a wide-ranging profession. In a recent appeal involving a roof terrace in north London (DCS Number 400-017-876) an inspector made reference to the meaning of life.

The inspector decided that the council’s refusal to grant a lawful development certificate for the existing use of the rear second floor roof terrace was not well founded. He explained that section 55(2)(d) of the Act sets out that “the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such” shall not be taken to involve development of land. The term “purpose incidental to the enjoyment of the dwellinghouse as such”, he continued, “has been subject to extensive case law over the years but I hope it is fair to say that, subject to a test of objective reasonableness, it is for the occupier to determine what incidental purposes they propose to enjoy. In other words if a householder wants to sit on their roof and ponder the meaning of life, they are perfectly entitled to do so as far as the planning legislator is concerned. There might be public agencies who, for health, safety or other reasons, might wish to intervene in the occupier’s contemplation, but the Local Planning Authority is not going to be one of them.”

In the circumstances the inspector considered that it would be appropriate to grant the LDC sought for the reason that there had been no development. There had not been the making of a material change of use because the dwellinghouse was still used as a single dwellinghouse and the use of part of its roof for sitting out, or indeed for any other reasonably incidental purpose, was not development by virtue of section 55(2)(d) of the Act, he concluded.

The legal scope of development control powers is explained at section 4.3 of DCP Online.

Not for long

In deciding an appeal against the refusal of advertisement consent for a 10m by 11m advertisement on a scaffolding shroud in a central London conservation area, an inspector decided that they were now part of the urban scene (DCS Number 400-017-787).

The shroud would display a 1-1 replica image of the host building, and from time to time an area of 11m by 10m would be used for advertisements.

Interestingly, the inspector ruled that the temporary nature of the proposal was fundamental to the decision-making process, rather than simply a factor to be weighed in the balance. Because of the absence of permanence, he reasoned, the judgement was not one that had a bearing on the effect on the significance of the conservation area. Rather, he held, it was one of a straightforward comparison between the impact on visual amenity of, on the one hand the scaffold and netting needed for the building operations, and on the other the shroud and its building façade image and a much smaller area for information and advertisements. He endorsed the opinion of a colleague inspector that shroud and wrap advertisements are now generally accepted as temporary features in a busy urban street scene, provide colour and interest, ‘announce’ that a redevelopment is being undertaken to the long term benefit of the street scene, and that provided they do not overwhelm their surroundings, ‘as a short-term measure to cover scaffolding many proposals would seem to offer only a benefit to the character and appearance of the surrounding area’.

The inspector concluded that the proposal would enhance the visual amenity of the conservation area compared to the alternative of leaving the scaffolding and debris mesh unaltered during building works. He is no doubt right on that point but what do readers think about his reasoning with regard to the temporary or permanent nature of advertisements? We have to confess we are a little unnerved here.

More on scaffold shrouds can be found in section 30.0342 of DCP Online.

Reasonably necessary

Planners working in the countryside will be very familiar with the phrase ‘reasonably necessary for the purposes of agriculture’ from the GPDO. It isn’t always straightforward, though, to judge what is and what isn’t ‘reasonably necessary’. An appeal case has come up involving an animal feeding area which the inspector found could be considered to be ‘reasonably necessary for the purposes of agriculture’ (DCS Number 200-007-212). As it involved a type which we have never come across, we thought it might be helpful to report it.

The land had been excavated to reveal a hard surface, and the arisings used to form a bunded enclosure. The council reasoned that the farm was in close proximity to the animal feeding area, where there were ample buildings and fields to accommodate sheep, and that the appellant had run a successful sheep farming business for some 15 years without a need for the development. The inspector acknowledged the previous arrangements for feeding sheep, but reasoned that they did not preclude improvements that might result in more efficient solutions or those which were better for animal welfare reasons. In her view, the requirement for works to be ‘reasonably necessary for the purposes of agriculture’ does not mean that only minimum standards can be considered to fall within permitted development rights.

Having found that the development was reasonably necessary for the purposes of agriculture the inspector noted, however, that Clause A.1 sets out development that is not permitted by Class A of Schedule 2, Part 6 of the GPDO. A.1(d)(i) was of relevance, she found, as it states that development is not permitted where the ground area which would be covered by any works or structure for accommodating livestock or any plant or machinery arising from engineering operations would exceed 465 square metres. Having considered the judgment in Taylor and Sons (Farms) v Secretary of State for the Environment, Transport & Regions, [2001], she ruled that ‘accommodating’ has a broader meaning than merely providing habitation. She agreed with the council that it would encompass the feeding area. Since the works exceeded the 465 metre limitation the development could not constitute permitted development, she concluded.

Section 4.3425 of DCP Online concerns Part 6 of the GPDO.

Raising the bar

We all know that we sometimes have to walk a tightrope, balancing public interests against the interests of planning applicants. An inspector recently did just that, in a finely balanced decision relating to an appeal against the refusal of permission for a flying trapeze in the back garden of a house in Gloucestershire (DCS Number 400-017-774).

In the end the decision swung against the appellant, the inspector concluding that, even though users of the trapeze rig would be focusing on their activities rather than looking towards other properties, the perception of overlooking would remain. The rig would also appear as an incongruous feature in the residential context, he held.

Thank goodness the inspector knew which way to jump, otherwise the whole thing could have turned into a three-ring circus.

The issues raised by a number of other types of garden structures are illustrated at Section 12.837 of DCP Online.

In the first instance

In allowing an appeal against the refusal of permission for the change of use of a semi-detached dwelling on a housing estate in southeast London to a house in multiple occupation (DCS Number 400-017-753) an inspector noted that:

“There were a number of objections to the change of use and the development as a whole. However, I note that the appeal before me does not involve questions of character and appearance, the living conditions of neighbouring properties or parking because these matters were deemed satisfactory by the Council.”

How does that square, though, with Section 79(1) of the Town and Country Planning Act 1990 which states that “On an appeal under section 78 the Secretary of State may …. deal with the application as if it had been made to him in the first instance.”? If there were a number of objections should they not have been addressed?

Readers might be aware that Buckfastleigh Town Council has recently dissolved its planning committee, claiming that nobody was listening to them anyway. Wherever can they have got that idea from.

The topic of local public opinion is discussed at Section 3.9 of DCP Online.

Fuel to the fire

Readers interested in the hot topic of whether the amalgamation of residential units to form a single dwelling is a material change of use might wish to note the outcome of an appeal against the refusal of a certificate of lawfulness in north London (DCS Number 400-017-738).

This case concerned the amalgamation of two dwellings to form one dwelling. The council argued that it would be a material change of use due to the under-occupation of the dwelling which would materially alter the character of the way it was occupied.

In the inspector’s opinion the changes associated with the amalgamation of the two dwellings into one would have to be such that there was a material difference in the way the property was occupied, and given that the nature of the use remained residential, he held that such a change would have to be quite significant. Having examined occupancy figures supplied by the council, the inspector found it highly unlikely that the level of occupation would be so different as to alter the character of occupation to such an extent that it would be reasonable to conclude there had been a material change of use. Further, the council had not explained what significant changes were likely to be perceptible due to under-occupation and there was no evidence such changes had come about. The inspector concluded that the amalgamation of the two dwellings had not led to a material change of use and as such it was not development.

This topic is also the subject of two earlier Blogs: The topsy turvy world of flat amalgamation and A case of interpretation; and is covered at section 11.1112 of DCP Online.

Fine words

As planners we strive for clarity and precision when writing committee reports and site appraisals, so it’s useful to keep a mental folder of relevant vocabulary. You might like to file the following from a recent appeal decision (DCS Number 400-017-750).

“It …. is enclosed …. by trapezoidal section steel cladding.” and “The roof is sinusoidal profile asbestos sheeting.” Is that class, or what? It’s certainly a step up from ‘wriggly tin’ and ‘corrugated asbestos’.

Happy to share.