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Wriggle room

An inspector who refused permission for a temporary mobile home associated with a vermiculture enterprise in north Yorkshire (DCS Number 200-006-878) might have opened a can of worms.

The appellant explained that he needed to be on hand to ensure the correct environment for the worms was maintained, as failure of the systems could result in a sudden mass exodus of worms out of the tubs and onto the dry and dusty floor which would result in death within minutes. The council, however, provided evidence that a number of dwellings had been available for both sale and rent in recent times in the village which could provide nearby accommodation for the appellant. Taking this and all other factors into account, the inspector was not convinced that the mobile home would be essential for the operation of the enterprise.

Watch out, inspector, even a worm will turn.

The following DCP section is relevant: 9.3343

A classic case

The issue of the planning unit comes up not infrequently, particularly in enforcement cases. As an inspector has recorded and helpfully set out in his decision (DCS Number 400-016-723), the classic definition is found in Burdle v Secretary of State for the Environment [1972]. Readers might find it useful to keep this somewhere handy.

The court held there were three issues to consider:

“First, that whenever it is possible to recognise a single main purpose of the occupier’s use of his land to which secondary activities are incidental or ancillary, the whole unit of occupation should be considered … But, secondly, it may equally be apt to consider the entire unit of occupation even though the occupier carries on a variety of activities and it is not possible to say that one is incidental or ancillary to another. This is well settled in the case of a composite use where the component activities fluctuate in their intensity from time to time but the different activities are not confined within separate and physically distinct areas of land. Thirdly, however, it may frequently occur that within a single unit of occupation two or more physically separate and distinct areas are occupied for substantially different and unrelated purposes. In such a case each area used for a different main purpose (together with its incidental and ancillary activities) ought to be considered as a separate planning unit.”

An oldie but a goodie.

The following DCP section is relevant: 4.324

Nowhere near the same

In Not quite the same we reported a case (DCS Number 200-006-528) in which an inspector found that an application for approval of reserved matters made pursuant to an outline permission for 20 dwellings would have to be for something numerically close to that number, otherwise it would not be pursuant to the permission.

In a more recent case (DCS Number 400-016-552), on the other hand, the inspector found little reason to suggest that details for a development of 9 dwellings would not fall within the ambit of an outline permission for 14 dwellings. In the event, he decided that the outline permission had to be read in conjunction with a planning obligation which provided for five affordable dwellings and as these were no longer on offer he dismissed the appeal.

Nevertheless, this gives rise to a maths problem which has defeated the DCP Blog. How do you show that 9 is numerically close to 14 where the total is 14?

The following DCP section is relevant: 5.1323

New to the area

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