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Care in the community

An inspector who extended the period for compliance with an enforcement notice directed at a single storey rear side infill extension at a house in east London (DCS Number 400-018-777) has articulated the considerations relevant to the assessment of personal circumstances.

The enforcement notice required either the demolition of the extension or modification to bring it into line with GPDO limits. The council had set a compliance period of three months whilst the appellant requested twelve months. He explained that this would allow time for him to have a kidney transplant, the new kidney being donated by his wife, and for a period of recuperation afterwards for both of them of at least nine months.

The inspector took the view that determining the time needed to comply with the requirements of an enforcement notice will always be a case-specific exercise. Understandably, given the circumstances, he gave a detailed account of the matters to be weighed in the balance: “ the health issues mentioned; the implications for the appellant of finding alternative space for the array of items and equipment in the extension; the possibility that the appellant may wish to check over matters with the Council if the option of following the GPDO is chosen, particularly with regard to walling and roofing materials, so that one breach is not replaced by another; the need to secure quotes, appoint a contractor and get the work fitted into that contractor’s schedule of work; the desirability of remedying the breach in a reasonable timescale and avoiding a situation whereby a compliance period is so long that it would be tantamount to the grant of a temporary planning permission; and the need to avoid unduly prolonging the harm being caused, particularly to neighbouring residents.”

The inspector judged that whilst twelve months would be excessive, a period of five months would be a more reasonable period for the appellant than three. He concluded that this would represent a proportionate response that struck a fair balance between the conflicting public and private interests in the case. He made it clear that the compliance period of five months started from after the notice took effect which was the date of the appeal decision.

Every now and then evidence of care and concern in the planning community will pop up and we think this is a rather good example.

Section 4.17 of DCP Online considers the extent to which the personal circumstances of private individuals  are material when making decisions on development management matters.

Kapow!

We hesitate to contradict an inspector but we feel we must comment on a ruling involving three superheroes in Warwickshire. This appeal was against a listed building enforcement notice which required the removal of Batman, Superman and Spiderman from the front elevation of a bar and restaurant (DCS Number 400-018-962). Batman and Superman were standing on a recess above the fascia at first floor level and Spiderman was climbing up the wall.

The appellant claimed that the figures were a temporary installation which were occasionally put outside, but kept inside in poorer weather. The inspector ruled, however, that the installation of the three figures had entailed operations of lifting and fixing in position that should be considered as works to the listed building. He reasoned that in order to install the figures it would have been necessary to lift them into position, quite possibly needing the use of ladders, or even temporary scaffolding. He decided that they had a dramatic effect upon the appearance of the building. He therefore concluded that they had resulted in a significant alteration to the appearance of the listed building, and had affected its special architectural and historic interest.

We feel we must point out that it is only Batman who lacks superpowers, and would therefore have used conventional means to scale the building. Superman uses his personal mono-directional gravity field to propel himself through the air and Spiderman uses wrist-mounted devices to fire adhesive webbing.

Information concerning alterations to listed buildings can be found at section 27.2 of DCP Online.

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.