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A dash of colour

Retrospective listed building consent has been refused for the painting of the exterior of a ground floor Glasgow bar in a burgundy colour (DCS Number 400-009-896). The appellant explained that since taking on the lease in 2012 the business had attracted core regulars but had struggled to attract passing trade, customers having indicated that a common problem was identifying the bar as a separate entity from the hotel above (…and that was before they’d had a drink?! Anyway…). Since the burgundy paint was applied business in the bar had increased by about 30 per cent. The reporter took particular exception to the clash between the burgundy colour and the cream colour of the hotel.

The overall result might be something of an assault on the eyes and, of course, the council and the reporter are charged with considering the impact on the listed building as a whole. It does seem a shame, though, to lose a spot of colour which might cheer up a dreich Glasgow day, could be regarded as a manifestation of the city’s well known brio, and has increased the viability of the business. Perhaps the city elders and their advisers will be able to use their ingenuity to find a creative and positive way forward.

Just saying.

The following DCP chapter is relevant: 27.2328

Picking up the community engagement theme

A 45m high wind turbine was allowed in the east Riding of Yorkshire (DCS Number 400-009-878) after an inspector decided that the proposal had community backing. Following the site visit in June 2015 the secretary of state issued a Written Ministerial Statement (WMS) in relation to wind turbines. This indicated that when determining planning applications for wind energy development local planning authorities should only grant planning permission if the site was in an area identified as suitable for wind energy development in a local or neighbourhood plan and it could be demonstrated that the planning impacts identified by affected local communities had been fully addressed and the proposal had their backing. Following consultation, the council received eight letters of objection relating to matters including landscape harm, cumulative impact, noise and shadow flicker. The inspector decided that any landscape harm would be very limited in extent, there was very little potential for other turbines to be seen in conjunction with the appeal proposal, conditions would ensure that noise levels were below recommended limits, and hedgerows and trees would mitigate against any limited potential for shadow flicker. On this basis the inspector decided that whilst the site was not within any area identified as suitable for wind turbine development the planning concerns expressed in the submissions from eight local addresses had been fully addressed. He reasoned that since the WMS stated that whether or not a proposal had the backing of the affected local community was a planning judgement for the local planning authority, by inference that judgement must also be for the inspector on appeal. He concluded that the concerns of a small proportion of the local community had been addressed and the scheme could be seen to have the backing of the local community as a whole in the context of the WMS.

Weighing the planning impacts of a development in the balance is one thing, however, while coming to the conclusion that it has community backing in the face of written objection is another. Would the local community ‘as a whole’ agree that the scheme had its backing or is this another example of community engagement fatigue? The inspector might have known the views of the silent majority but the latter conclusion would not seem unreasonable given that eight households objected to the wind turbine and eight households were overruled.

The following DCP chapter is relevant: 26.532

Inspectors are human too

An inspector took a pragmatic view in respect of an enforcement notice requiring the removal of two caravans on the Norfolk coast which had been sited there following the destruction of the appellant’s bungalow (DCS Number 400-009-887). The bungalow had been destroyed by a tidal surge in December 2013 and the case appears to have an intriguing backstory: “I do not propose to refer in detail to the criticisms made by each side of the other. For example, whether or not the appellant could have foreseen the events that left her homeless when she purchased the property, and whether or not the actions of the council contributed to the coastal erosion that led to the loss of that property, does not alter the position in which she finds herself.” says the inspector.

The council sought a compliance period of six months. The inspector understood the council’s need to protect its position by initiating enforcement action. He agreed that the residential use of the site was not compatible in the long-term with its location within a countryside policy area, as undeveloped coast, and within a coastal erosion constraint area. He saw scope for compromise, however. In the exceptional circumstances of the case the appellant’s request to extend the compliance period to twelve months in order to secure alternative arrangements was not unreasonable, he determined.

The following DCP chapter is relevant: 4.5361

A bird in the hand?

“In reaching my conclusion against the main issue I have taken into account that the proposal would create jobs, provide income and support a business.”

In a Manchester case (DCS Number 400-009-861) an inspector denied permission for a car showroom on a principal route into the city because it would harm the character and appearance of the area and prejudice the objectives of a regeneration masterplan. The site comprised two parcels of land adjacent to a hand car wash occupying a former petrol filling station. In the vicinity there was a mix of commercial uses, railway infrastructure and advertisement hoardings. Permission was sought for two years. Even in the context of a varied urban environment, the inspector decided, the layout of the site would lead to a poor quality form of development that would detract from the route to and from the city centre. Moreover, the site was bounded by a masterplan area which sought to deliver a programme of new housing, community facilities, highway improvements, landscaping, open space and infrastructure.

Presumably the appellants weren’t proposing to display Porsches but even so, the site was on a busy main road in a commercial area, it wasn’t in the regeneration area but next to it, and it was only a temporary permission that was being sought. The DCS team does wonder whether the bird in the hand really wasn’t worth the two in the bush that the regeneration plan might bring in this case. Perhaps there is an argument for saying that development might only be considered to prejudice a regeneration scheme when it is actually within the plan area.

The following DCP chapter is relevant: 4.1311

Outside play at nursery – whether condition enforceable

Day nurseries are often located within the residential areas which they serve and concerns raised by neighbours commonly relate to traffic generation and noise from children playing. In a Manchester case (DCS Number 400-009-857) the appellants wished to increase the number of children from seven to twelve and to extend the opening hours. Whilst the inspector was satisfied that noise transfer to the adjoining property could be addressed by means of acoustic boards along the party wall he was not convinced about the arrangements for outdoor play and the impact on the enjoyment of the adjoining garden. The appellant maintained that play times were staggered so that only small groups of up to four children would be outside at any one time – no different from children playing at a family home. A search of the Compass database reveals that a condition along these lines is frequently used in practice. In this case, however, the inspector came to the following conclusion; “Although a planning condition could be imposed, I am not persuaded that it would be enforceable due to the practicalities of detecting a contravention or remedying a breach”.

Given the speed at which small children run around it does seem that the inspector has a point here. If an enforcement officer is not to be stationed permanently on site the condition relies on neighbours monitoring the numbers of children playing outside, not a task which would contribute to the peaceful enjoyment of their property, which is what they were seeking to protect in the first place.

The following DCP chapter is relevant: 4.412

This continues the theme of the duplication of controls raised in an earlier post

An inspector permitted the construction of a basement extension at a mid terrace house in the royal borough of Kensington and Chelsea subject to a condition that the works should be overseen throughout their duration by a chartered structural or civil engineer (DCS Number 400-009-842). Neighbours raised concern about structural damage to their properties and the inspector, in allowing the appeal, attached the condition “to protect the living conditions of neighbouring occupiers”.

It seems that there are three courses of action which the inspector could have taken here.

  1. He could have allowed the appeal, ruling that damage to other property is a civil matter which must be addressed under other legislation.
  2. He could have dismissed the appeal in the absence of a structural survey and programme of works convincing him that the development could be undertaken without damage to neighbouring property.
  3. He could have taken the course he did take.

How did the inspector decide, and on what basis? What matters influenced his decision? Was it the severity of the consequences should structural failure occur, was it vociferous opposition or concern from neighbours, was it the cost to neighbours of legal redress, not to mention heartbreak….

Again, it is possible to think of many situations where parallel issues are under consideration. Highway safety springs to mind. Guidance on when it is and is not acceptable to duplicate other legislation in the form of planning conditions would bring certainty to developers and local authorities alike. And certainty would save so many tears of frustration.

The following DCP chapter is relevant: 4.417

No chances to be taken with suffocating gas

It is often argued that conditions are unnecessary where the matter of concern is also addressed by other legislation but in the following case the inspector decided to take a belt and braces approach.

The inspector declined to delete a condition attached to the planning permission for a bus depot in Northumberland (DCS Number 400-009-827) which required a scheme to protect the buildings from the ingress of gas from former mine workings, finding that it was reasonable and necessary.

The council was particularly concerned about the risk from stythe gas, an asphyxiant which reduces the available oxygen content of air to a level incapable of sustaining human life.

The appellant argued that the condition was not necessary or relevant to planning, because ingress of gas from former mine workings was controlled under building regulations, and additionally by environmental health legislation. He also regarded this overlap of controls to make the condition unreasonable and to place an unnecessary burden on him.

The inspector noted, however, that Paragraph 121 of the NPPF states that planning decisions should ensure that the site is suitable for its new use taking account of ground conditions and land instability including from natural hazards or former activities such as mining. In this regard she had seen no evidence to demonstrate which controls outside planning legislation would provide a suitable alternative means of managing the matter.

The appellant had undertaken an investigation comprising ground investigation, geotechnical testing and chemical analysis supplemented by further monitoring of soil gases and groundwater. Results from the investigation showed that detected oxygen levels dipped to 14.7 per cent in one instance whereas typical atmospheric levels are around 21 per cent. The Mines Regulations 2014 contain a requirement to ensure that the amount of oxygen below ground is no less than 19 per cent volume, the inspector recorded. These seek to protect the workforce from harm, but relate to mine workers, rather than the occupiers of buildings.

The inspector concluded that in practical terms the recorded oxygen level of 14.7 per cent fell well below the level normally found in the atmosphere, and also below the level required for mine workers. Whilst appreciating that the occupants of the depot would not be working underground, she reasoned that the development nevertheless involved building enclosed spaces including sunken inspection pits and ground floor offices on top of land where mine gas might be present. She decided that since the occupiers of the depot were not adequately protected against the effects of stythe gas, and bearing in mind that there had been a number of near misses and one fatality in Northumberland relating to mine gas accumulations, the adverse impacts arising from a lack of suitable protection could be significant.

It remained necessary and reasonable to require the submission of a scheme to protect the buildings from the ingress of gas from former mine workings, particularly stythe gas, the inspector ruled.

The interesting point of debate raised by this decision concerns the necessity of conditions and the point at which a sensible safety first approach becomes the duplication of controls. Other similar types of condition come to mind, say drainage conditions, but readers will no doubt be able to think of other examples. Is there scope for the introduction of some clarity about what the rules are here?

The following DCP chapter is relevant: 4.417

Development for Northampton but not in Northampton

Outline permission for 41 houses was allowed in Daventry district despite its having a five-year housing land supply, an inspector reasoning that the development would serve the needs of Northampton (DCS Number 200-004-355).

The site was located immediately adjacent to the urban area of Northampton. The joint core strategy stated that Northampton’s needs could not be met within the borough boundary of Northampton and so adjoining areas in the districts of Daventry and South Northamptonshire had been allocated as sustainable urban extensions. These were included within the Northampton Related Development Area (NRDA) boundary. Although the site was not within the NRDA boundary it directly adjoined it. Daventry council stated that development outside the NRDA boundary was not required because all of Northampton’s needs would be met within the NRDA boundary. The inspector pointed out, however, that Northampton borough council was not able to demonstrate a five-year supply of deliverable housing sites within the NRDA, but had a shortfall of 223 dwellings. She concluded that the proposal would constitute development for the NRDA, if not in the NRDA.

And if Daventry wasn’t already feeling a bit cross the following from the inspector would surely see to it. Daventry argued that if the housing was to be provided to meet Daventry’s needs then the provision of affordable housing should be 40 per cent rather than 35 per cent which reflected Northampton borough council’s policy. The inspector decided, however, that as she had concluded that the proposal would constitute development for Northampton the provision of 35 per cent affordable housing on site would be sufficient.

The following DCP chapter is relevant: 7.13

You can’t help but feel a bit sorry for them

An additional floor to accommodate two flats on a building in mixed residential and retail use in north London (DCS Number 400-009-589) was rejected due to the lack of a contribution towards affordable housing. The application was made in September 2014 and refused in February 2015.

Contrary to the view of the council, the inspector saw nothing untoward in the appellant’s approach in devising an extension of wholly contrasting design to the host property. But….

Core strategy policy required that all sites capable of delivering 10 or more units should provide affordable homes on-site and schemes below this threshold would be required to provide a financial contribution towards affordable housing provision elsewhere in the borough. However, in the light of the Written Ministerial Statement (WMS) of November 2014 and the amendments made to the Planning Practice Guidance (PPG) in respect of affordable housing requirements on sites of 10 units or less, the council did not require the financial contribution to be paid. Nevertheless, in its appeal statement the council referred to the successful legal challenge made by West Berkshire and Reading councils to the WMS and revised provisions of the PPG in July 2015 (R on the application of West Berkshire District Council and Reading Borough Council) v Secretary of State for Communities and Local Government) [2015]. Accordingly, the council’s position was that if the inspector were minded to allow the appeal it would expect the decision to be accompanied by an undertaking to secure a financial contribution towards the provision of affordable housing elsewhere in the borough, in accordance with core strategy policy. The appellant, on the other hand, argued that the application had not been refused for this reason, and the original application was not determined in a timely manner, thus depriving the appellant of the short-lived stay on s106 contributions for small-scale developments.

In dismissing the appeal in November 2015 the inspector explained that he was required to make his determination in accordance with the development plan unless material considerations indicated otherwise, and the provisions of the core strategy policy were clear and unambiguous. Whilst he understood the appellant’s position, he pointed out that the option to appeal on the grounds of non-determination had not been exercised.  

That can’t have made the appellant feel any better.

The following DCP chapter is relevant: 7.3

Here is a case which raises a novel development management practice point

The owner of a semi-detached locally listed cottage in east London who built a three-storey rear extension in non-matching materials failed to convince an inspector that the development would comply with a condition requiring matching materials once he had cleaned up the bricks on the original house (DCS Number 400-009-655). Aside from the fact that the design of the extension did not comply with that granted planning permission, it had been constructed in new yellow stock bricks. The old bricks on the main building were yellow stock bricks but were now well weathered and significantly darker than when they were originally laid, probably well over 100 years ago. The inspector reasoned that if the appellant did manage to clean the old bricks successfully then the materials might match. However, no sample panel of cleaned bricks had been prepared and he simply did not know for sure if it would be an acceptable way forward. He could not, therefore, grant planning permission on this basis, he decided.

In this case the inspector was clear that there had been a breach of planning control, rejecting the argument that the work simply wasn’t finished yet.

The following DCP chapters are relevant: 4.3421 12.2