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Paragraph 55 of the National Planning Policy Framework states that local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances. These circumstances include the exceptional quality or innovative nature of the design of the dwelling. This is national policy; it’s in the name.

Interesting, then, to see that an inspector has allowed an isolated dwelling in Essex after finding that its design was locally innovative (DCS Number 400-016-678). He recorded that the council had not directed him to any similar projects locally where the simple method of straw bale construction had been employed as part of an overall design philosophy of a relatively cheap and accessible low impact building. Accordingly, he found that the overall project was locally innovative and had the potential to raise the environmental standards and diversity of design in the vicinity. He also remarked that it had the potential to raise standards of design locally as a template, particularly for self-builders. He concluded that the project overall would amount to an isolated home where a special circumstance had been demonstrated.

There is, of course, nothing in Paragraph 55 which tells us the level against which the exceptional quality or innovative nature of the design should be tested. In particular, it doesn’t tell us that the test is set at national level, as the outcome in (DCS Number 400-016-678) confirms. This sets the bar lower than some of us might have assumed.

The following DCP section is relevant: 9.2352

Something completely different

An appeal case involving student accommodation in Surrey (DCS Number 400-016-457) reminds us that planning conditions cannot be varied to the extent that something completely different from the original permission would result.

Planning permission for the development had been granted subject to the condition that it should be used for residential student accommodation only and for no other purpose. The appellants sought to vary the condition to widen the use of parts of the development to include houses in multiple occupation (HMO) accommodation for students and/or other persons.

The inspector explained that residential student accommodation falls outside any of the use classes within the Town and Country Planning (Use Classes) Order 1987 and is therefore a sui generis use. The residential HMO accommodation would also fall outside any use class under the Order so would also be a sui generis use. He recorded that the Planning Practice Guidance sets out that a condition that modifies the development in such a way as to make it substantially different from that set out in the application should not be used. The PPG also sets out that where these modifications are fundamental or substantial, a new planning application under section 70 of the Town and Country Planning Act 1990 will need to be submitted.

The inspector took the view that the proposed variation of the condition would equate to a material change of use that would make the development substantially different from the consented scheme. In this light, he ruled that the appeal was invalid.

The following DCP section is relevant: 4.416

Dig deep

Subterranean houses in the rural area are proposed not infrequently, their below ground design being a response to concern about their impact on the landscape. Whilst they can achieve a measure of success, their potential to increase car travel will often count against them. In a more unusual case in east London an appellant has gained planning permission, having applied the same design principle to concern about the character and appearance of the suburban area (DCS Number 400-016-586). In these circumstances, of course, there is no issue in relation to the sustainability credentials of the location.

The proposal entailed the redevelopment of four garages of concrete block construction with a partially subterranean two-bedroom house. The appeal inspector found that the garage block did not contribute positively to the character and appearance of the streetscene. He noted that the development would have a broadly similar height, width and depth above the existing ground level when compared to the existing garage block. He judged that it would represent an improvement on the current garage block without adding any significant visual massing or bulk to the streetscene, concluding that the innovative approach to the site would represent an acceptable design solution to its constraints.

Scruffy garage blocks – where the smart money’s going.

The following DCP section is relevant: 8.233

Plus ça change….

In PPS7 Annex A – gone but not forgotten and Nearly four years on and deleted guidance is still in use we remarked on inspectors’ reluctance to let go of PPS7 guidance on new farm dwellings.

Readers might recall that PPS7 guidance required a proposal for a new agricultural dwelling to satisfy a functional and a financial test in order for an isolated new house in the countryside to be justified. The NPPF, on the other hand, states only that there has to be an essential need for a rural worker to live permanently at or near their place of work in the countryside. But how do you assess an essential need?

An inspector dealing with a proposal for a farm dwelling in County Durham has skilfully got round the problem by simply interpreting the new guidance in the same frame of reference as the old guidance (DCS Number 200-006-807).

Here we are:

“Whilst both the council and the appellant have referred to the former PPS7, in particular Annex A, this has been replaced by the Framework which does not contain detailed advice on how essential need might be demonstrated. However, in my judgement, for an essential need to exist there must be some aspect of the farm operation that demands a residential presence on the holding, and there must be some certainty that the farm business is sufficiently soundly established that this presence will be required for the foreseeable future.”

In other words, the proposal must satisfy a functional and a financial test.

Plus ça change, plus c’est la même chose.

The following DCP section is relevant: 9.331

Keeping an end in sight

In planning, deviation from the proper procedures is fraught with peril. On the other hand, following procedure down a blind alley is not a good course either, as an inspector pointed out in (DCS Number 200-006-790).

In this case the inspector allowed an appeal against a refusal to grant approval of details required by conditions on a planning permission for an apartment building in south Wales. The inspector recorded that the appellant had submitted an application to discharge eight conditions approximately five weeks before the planning permission expired. The majority of the conditions required details to be submitted to and approved by the council prior to the commencement of development. Nevertheless, the appellant commenced development on site before the application was determined by the council. The council then refused the application as the development had commenced prior to the discharge of the conditions.

The council argued that as the appellant had commenced development prior to the determination of the application he was in breach of the conditions. Therefore, the only option was to refuse the application. However, the council confirmed that if the development had not commenced in breach of the conditions it would have approved the application as all the details submitted against each of the eight conditions were acceptable.

Having regard to the fact that the council had granted full planning permission for the development of the site, and that all the details submitted with the application subject to the appeal were acceptable, the inspector considered that the council’s decision was not a pragmatic approach to take. He concluded that the appeal should be allowed.

The following DCP section is relevant: 4.4119

On the ground

Once a settlement boundary has been defined it is easy to see it as fixed and not to be breached. However, an inspector dealing with an appeal against the refusal of outline permission for a house in the green belt in Essex took account of case law set out in Julian Wood v SoS and Gravesham Borough Council [2015] which found that the term “village” is not necessarily the same as a settlement boundary, and that there is a need to consider the facts on the ground (DCS Number 400-016-397).

In Julian Wood an appeal had been made against the refusal of planning permission for a single dwelling on a site which lay in the green belt but was surrounded by existing development. The court considered that the main issue was the interpretation of Paragraph 89 of the NPPF which provides that “limited infilling in villages” is an exception to the general rule that the construction of new buildings is inappropriate in the green belt. The court ruled that the policy required the decision-maker to consider whether, as a matter of fact on the ground, the site appeared to be in the village. The court found that the fact that the site lay outside the village boundary as designated in the development plan was not determinative; the inspector had misdirected himself as to the proper meaning of paragraph 89 in limiting himself to considering whether the proposal was within the designated village boundary.

In (DCS Number 400-016-397) the inspector did not consider that the proposal could reasonably be considered as infill. Furthermore, he concluded that “the facts on the ground in this case are that the appeal site does not lie within a village for planning policy purposes; either in terms of settlement boundaries and the facts on the ground. Accordingly, the proposal whilst limited in the form of one dwelling, would not represent limited infilling in a village.”

The following DCP section is relevant: 9.1331

On the road

In quashing an enforcement notice requiring the removal of a front roof extension at a house in east London (DCS Number 400-016-410) an inspector has considered the definition of a highway.

The difference between the parties concerned whether or not the roof extension was permitted development, and the inspector identified the determining issue as being whether it fronted a highway. The 2015 GPDO states that the term “highway” includes an unadopted street or a private way and the term “unadopted street” means a street not being a highway maintainable at the public expense, he recorded. He further explained that a highway is a defined route over which the public at large can pass and repass as frequently as they wish without hindrance and without charge. It can come into existence through a statutory order or an agreement made with the landowner or by being dedicated as a highway by the landowner (either expressly or by presumption or by deemed dedication after 20 years’ public use). The use by the public must be as of right and not on sufferance or by licence. The right can be limited to a particular class of user or mode of transport. A privately-owned or privately-maintained way can be a highway, but only if the public at large can use it as of right.

The inspector found that the walkway to the front of the house did not fit within any of these descriptions. He concluded that it was not a highway and the front roof extension was therefore permitted development.

The following DCP section is relevant: 4.3442

A thousand words

Whilst plans are often attached to lawful development certificates we don’t know that we have ever seen a plan included within the body of an appeal decision before. But here is one (DCS Number 400-016-424).

This case concerns an appeal against the refusal of a lawful development certificate, as it happens, for a hip to gable enlargement and a rear dormer extension at a semi-detached house in north London. The parties disputed whether or not the proposal would constitute permitted development. Making reference to a roof plan set within his text, the inspector set out his understanding of the difference between the council and the appellant, and his reasoning which led him to agree with the appellant.

This seems like a rather helpful innovation to us. What are readers’ views?

The following DCP section is relevant: 4.3421

Stalling for time

None of us wishes to see stalled development blighting our cities, one would hope. Nonetheless, an inspector has found that a condition precluding the commencement of development of a site in west Yorkshire before contracts had been let was unnecessary, unreasonable and unenforceable (DCS Number 400-016-396).

The appeal related to a mixed use development of up to 11 storeys comprising residential with a ground floor A3 or A4 unit. The disputed condition stated “No development shall take place before contract(s) for the carrying out of the redevelopment of the site, including the works contract, have been made, and evidence of such contract(s) has been submitted to and agreed in writing by the Local Planning Authority.”

The site had a long planning history, the inspector noted, having originally been granted permission in 2008. The condition was imposed in 2015 in order to ensure a timely development without years of further delay. At that time the outline planning permission had approximately a year left to run, and there was concern that a ‘technical start’ could be made to prolong a permitted scheme indefinitely. By not completing the scheme, a blighted cleared site would be left, making no contribution to the regeneration of the area.

The inspector observed that the reason given for the condition on the planning permission referenced the visual amenity and character of the area, not the objective of ensuring the completion of the development. If it were the latter, Planning Practice Guidance advises that conditions requiring a development to be carried out in its entirety would fail the test of necessity, she noted, and goes on to comment that such a condition would be difficult to enforce due to the range of factors that can influence a decision whether or not to carry out and complete a development. She found it understandable that the council would wish to ensure that the site was not cleared and left in an untidy state, particularly as it was located in a prominent location on a main route into the city. The condition, however, required evidence of the works contract to be submitted and agreed by the council, and as the wording of the condition was very broad in its scope it was unclear to her what the council was looking to approve. Either it could be evidence that a contract was in place or it could be the terms of the contract itself. If it were the latter, and the council did not approve the contract, its intervention in this regard would be unreasonable. She was also mindful that, should the contractor go into administration during the development, the council would be unable to enforce the completion of the scheme.

The inspector reasoned that whilst the redevelopment of the site had clearly stalled, no doubt partly due to the recession, there appeared to be no evidence that a developer would not complete the scheme once committed to it. In addition there was no evidence, she found, that if the buildings were to be demolished and the site cleared, the developer would leave the site in an untidy state. She pointed out that if that were to happen, the council would have other powers open to it, such as a Notice under Section 215 of the Town and Country Planning Act 1990 requiring the condition of the land to be remedied, or it could consider issuing a Completion Notice under Section 94 of the same Act.

The inspector acknowledged the council’s concerns to ensure that the redevelopment of the site took place in a timely manner and that the site was not cleared and left vacant detracting from the character of the area, but concluded that the condition was not necessary, and was unreasonable and unenforceable. Therefore, it failed to meet the tests set down in paragraph 206 of the Framework.

The following DCP section is relevant: 4.412

Back to the future

An appeal case concerning a rear extension to a house in Essex (DCS Number 400-016-352) confirms that prior approval cannot be granted after the commencement of development.

The council assessed the extension against the provisions of Schedule 2, Part 1, Class A of The Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO), and concluded that as the proposed works had already been completed prior to the determination of the proposal, the scheme could not be regarded as permitted development, the inspector recorded.

The inspector noted the wording of paragraph A.4 of the GPDO, and the conclusions reached in Winters v SSCLG & Havering LBC [2017]. In particular, he noted paragraph A.4(10) which requires that the development must not be begun before the receipt from the local planning authority of a written notice that prior approval is either (a) not required, or (b) has been given, or (c) the expiry of 42 days following the date on which the information for prior approval was received by the local planning authority without the local planning authority notifying the developer as to whether prior approval is given or refused.

It was evident that the structure had been commenced prior to the fulfilment of one of the required three events as set out in paragraph A.4(10) of the GPDO, the inspector observed. As a consequence, and having had regard to the conclusions of the High Court judgment, he was satisfied that prior approval could not be given on the basis of a “proposed development” for development that had already begun. He therefore dismissed the appeal.

The following DCP section is relevant: 4.3421