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Changed circumstances

In dealing with an enforcement appeal concerning the use of land in Hertfordshire as a wedding venue (DCS Number 200-007-514) an inspector has pointed out the potentially significant implications for green belt policy arising from draft changes to the NPPF.

Here is what he says:

“…on 05 March, the Government published a consultation draft of a revised NPPF. The general approach to development within the Green Belt is largely unaltered. However, under paragraph 145(e) of the consultation document the material change of use of land would not be inappropriate so long as the use of land would preserve the openness of the Green Belt and not conflict with the purposes of including land within it.

Due to the way in which the NPPF is structured ‘very special circumstances’ are required to justify a development that is inappropriate by definition i.e. one that does not fall within the limited number of exceptions. That is a high bar to overcome. The suggested policy change would have significant implications in respect of the material change of use of land, subject to the assessment on the openness of the Green Belt and the purposes of including land within it. If, such a change of use was not inappropriate there would be no need to demonstrate very special circumstances and, undoubtedly, the planning balance of material considerations would shift accordingly.”

You heard it here first.

Section 4.251 of DCP Online concerns green belt policy.

Not going to happen

A replacement dwelling in the green belt in Hertfordshire has been rejected at appeal, an inspector declining to take unexpended permitted development rights into account to justify a larger dwelling (DCS Number 400-018-395).

The existing dwelling was a modest single storey bungalow. The inspector found that the end result would be a building that was materially larger in volume, bulk and mass than that which presently existed on the site. The development would therefore be inappropriate development in the Green Belt as it was not within one of the exceptions in the closed list in paragraph 89 or 90 of the Framework, he determined.  

The appellant, however, claimed that the unexpended permitted development rights afforded to the existing dwelling were a legitimate fallback position and should be taken into account when assessing whether the proposal was materially larger than the building it sought to replace.

In turn, the inspector cited the words of the judge in Athlone House Ltd v SSCLG [2015] when considering paragraph 89 of the Framework “… it would not affect the baseline which was the basis of comparison set out in paragraph 89 [of the Framework]. Paragraph 89, as I have already observed, is clear; an unbuilt permitted development which a developer may be keen to implement could not, on the basis of the interpretation of the plain words of the policy, be included in such an assessment. That is not to say that such a material fallback would be irrelevant. It would probably be relevant at the stage of considering the question of very special circumstances, taking account of the weight to be attached to it bearing in mind the likelihood of its implementation and the extent of its impact on openness if it were developed”.

Accordingly, the inspector acknowledged that the unexpended permitted development rights were not irrelevant to the appeal before him. He noted, however, that the appellant had stated that the “condition of the property was poor and substantial investment would be required to not only secure structural integrity for future-proofing but to ensure that there was adequate thermal efficiency for sustainable modern-day living” and that the “long-term value of the property and its fit-for-purpose status is questionable”. On that basis the inspector found it highly unlikely that the appellant would go to the expense of carrying out extensions and alterations under permitted development rights to then demolish the building and erect the replacement sought. As such, he gave the unexpended permitted development rights limited weight.

There is comprehensive coverage of green belt policy at section 4.251 of DCP Online and rural reconstruction and replacement is discussed at section 9.63.

Golf balls

Taken from a recent appeal decision concerning the retention of a safety net at a golf club in north Wales (DCS Number 400-018-518):

“Playing golf often results in a ball being projected through the air..”

You don’t say.

Planning practice considerations associated with golf courses are discussed at section 18.2322 of DCP Online.

Faulty towers

A first floor extension to a building used as a money exchange abutting a railway embankment in the west Midlands has been refused permission by an inspector (DCS Number 400-018-516).

The inspector stated “The proposal would sit in very close proximity to the railway. In the absence of any appropriate structural information it is unclear how the development would impact on the stability of the adjoining railway infrastructure as a result of increased loads that would be created by the development. In the absence of such information, and in light of explicit concerns from Network Rail I cannot be satisfied that the development would not harm the stability and safe operation of the railway.”

Given that the name of the appellant was Faulty Tower Construction this is probably A GOOD THING.

External environmental factors affecting planning proposals are discussed at section 4.16 of DCP Online.

High-handed

A recent appeal case in north Wales addresses an interesting point about the validation of planning applications (DCS Number 400-018-465).

The appellants in this case had made a householder application for ‘alterations and extension to domestic garage to form annexe accommodation’ and they had paid the relevant fee. The planning authority, however, issued a notice of invalidity, with the requirement ‘Please complete and return an application form for planning permission, this type of proposal is not household but the creation of a dwelling, and please note the correct fee is £380.00’.

Quashing the invalidity notice, the inspector found it clear that the applicants sought permission for a conversion from a garage to an annexe, the use of which would be incidental to the enjoyment of the main dwellinghouse, and not for the creation of a dwelling. Citing Uttlesford DC v SSE & White [1992], he found nothing in law which prevented the council’s consideration of such a proposal as a householder application, since the court’s ruling was that it is a matter of fact and degree as to whether a ‘granny annexe’ would constitute a part of the main planning unit, or create a separate one. It therefore followed, he reasoned, that there was no prohibition on considering whether or not the proposal as applied for should be given planning permission as part of a householder application. As he pointed out, this in no way fettered the council’s judgement in determining whether to grant or refuse permission.

Here on the DCP Blog we agree with the inspector’s conclusion that it seems right that such a judgement should be exercised as part of the determination process, rather than forming part of the validation process. Indeed, we think it’s a bit high-handed to refuse to even consider the application for planning permission as sought.

Section 5.151 of DCP Online concerns the acknowledgement and registration of planning applications.

How much exactly?

Q How much harm is less than substantial harm, exactly?

A More than 5.25 per cent.  

Paragraph 134 of the Framework states that ‘Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal…’. The question this raises, of course, is how much harm is less than substantial harm? An inspector dealing with an appeal against the refusal of planning permission for 290 dwellings on ridge and furrow earthworks in Leicestershire decided, in the case before him, that it was more than 5.25 per cent of the earthworks (DCS Number 200-007-416).

The inspector recorded that several parcels of the appeal site contained ridge and furrow earthworks. The appellant and county council agreed that they were a non-designated heritage asset. The majority of the earthworks fell within a ‘priority township’. The county council was of the view that the earthworks were of demonstrably equivalent significance to scheduled monuments and should therefore be considered subject to the policies for designated heritage assets, as set out by Paragraph 139 of the Framework. The appellant disagreed with this view, and the inspector also had some reservations, given that priority townships were not identified in English Heritage’s Scheduling Selection Guide for Agriculture, 2013 (reissued in 2015). However, given that he was allowing the appeal, he gave the county council the benefit of the doubt in order to take a precautionary approach. He therefore considered the proposal in line with policies for designated heritage assets.

The inspector agreed with the county council that the significance of the earthworks resulted from their largely coherent physical survival, group value, archaeological and historic research potential, diversity and amenity value. The proposal would result in the loss of some six hectares of earthworks within the priority township, he recorded. According to the county council the level of loss that would occur to the earthworks within the priority township as a result of the scheme was a 3.5 per cent loss if just the ‘well-preserved’ earthworks were taken into account or a 5.25 per cent loss, if the directly affected furlongs, which had a larger area of 7.8 hectares were considered.

The appellant referred to the Nuon High Court judgment (Bedford BC v SSCLG & Nuon UK Ltd [2013]), which states that substantial harm would be harm that would have such a serious impact on the significance of the asset that its significance was either vitiated altogether or very much reduced. In addition, the inspector noted that the Government’s Planning Practice Guidance states that ‘In general terms, substantial harm is a high test, so it may not arise in many cases’

Taking a precautionary approach and taking into account the highest figure suggested by the county council, the inspector was not of the view that a 5.25 per cent loss of earthworks would result in a substantial physical loss. It was clear that a very high percentage of the earthworks would remain, he reasoned. Further, in terms of group value, not only would the loss be on the edge of a settlement, importantly in his view, it would also be on the very northern edge of the earthworks within the priority township. Consequently, the large area of earthworks to the south of the appeal site would still very much retain their contiguous group value and the proposal would not sever or segregate any wider areas of earthworks.

Overall, given this and other considerations, he concluded that the proposal would result in less than substantial harm to the significance of the priority township.

As we all know, each case must be decided on its own merits, but this case might provide a handy rule of thumb.

The impact of large housing developments on heritage assets is discussed at section 7.1357 of DCP Online.

Haves and have-nots

Approval of reserved matters for 71 dwellings in Leicestershire has been denied after an inspector found that the distribution and appearance of affordable housing would not result in an inclusive and mixed community (DCS Number 200-007-446).

The affordable housing units would mainly consist of short terrace rows of three dwellings situated within small clusters in the development, the inspector noted. He judged that it would be obvious to most observers that the market housing consisted of large detached or semi-detached houses with individual parking areas. Conversely, the affordable housing would be left with plain and potentially soulless parking courts to their front, with the overall scale and height of the terraces noticeably shorter than the market dwellings and narrower when viewed from the front. The likely outcome of this, he held, was that occupiers of the affordable housing and visitors to the development would be able to distinguish clearly between, as the council put it, the haves and have-nots. The inspector considered that such an outcome would be the antithesis of the aims of planning policy, set out at a national level, to design and deliver inclusive and mixed communities.

The appellant pointed to the fact that the affordable housing had not been ‘banished to the least attractive part of the site’ as the national Planning Practice Guidance seeks to avoid. The inspector acknowledged this, concurring that layout-wise the affordable housing was towards the centre of the site. He also acknowledged the fact that a two bedroom dwelling is, by its very nature, likely to be smaller that a five bedroom dwelling. Nevertheless, he considered that there would be a clear and noticeable distinction between affordable and market housing directly as a result of the appearance and scale proposed, distinctions which would be manifest and potentially result in the long term in a non-inclusive community. He found that the affordable housing would not be well integrated with the market housing. The inspector concluded that the noticeable differences in the affordable housing compared to market housing would undermine a key aim of national planning policy to create mixed and inclusive communities.

Developers must know that this approach to affordable housing is unlikely to succeed. Unless they are….detached from reality.

More on the integration of affordable housing in developments can be found at section 7.337 of DCP Online.

A cunning plan?

Class Q of the GPDO allows for the change of use of an agricultural building to a dwelling, along with the building operations reasonably necessary to convert the building. In a number of cases concerning rudimentary or dilapidated barns the proposed works have been deemed to go beyond what could reasonably be described as conversion such that they would be so extensive as to comprise rebuilding, thereby falling outside the limits of permitted development. If this has happened to you we have a cunning plan. Here it is:

STEP 1

Take a look at Class R. Class R allows for “a change of use of a building and any land within its curtilage from a use as an agricultural building to a flexible use falling within Class A1 (shops), Class A2 (financial and professional services), Class A3 (restaurants and cafes), Class B1 (business), Class B8 (storage or distribution), Class C1 (hotels) or Class D2 (assembly and leisure) of the Schedule to the Use Classes Order”.

In a case concerning the change of use of a Dutch barn in the Cotswolds to an hotel (DCS Number 400-018-251) the inspector made reference to Hibbitt and another v Secretary of State for Communities and Local Government and another [2016], drawing an important distinction between conversion under Class Q and change of use under Class R. Here is the key bit of the decision:

“As part of the permitted development right, Class Q(b) allows for building operations reasonably necessary to convert the building to a dwelling. The concept of conversion is central to the Hibbitt judgement. This is because the building operations within the permitted development right must be reasonably necessary to convert the building (emphasis added). However, for the purposes of Class R the term “associated operational development” means “building or other operations in relation to the same building or land which are reasonably necessary to use the building or land for the use proposed under Class R.” Unlike in Class Q, the word “convert” is not used.”

In the case before the inspector the council had already confirmed that prior approval was not required. As the inspector pointed out, the development that was subject to the appeal was not for the change of use, nor was it for the construction of a new hotel; it was expressly for the building works that related to implementing the change of use. The council was nonetheless concerned that the works were so significant that it would go beyond what could reasonably be considered to be the conversion of the building. The inspector acknowledged that the works proposed were extensive and would result in new external walls on all four elevations and a new external roof. However, given the nature of the existing building, she could not envisage that works which were significantly more modest than what was proposed would be sufficient to allow the building and land to be used for its intended purpose. The works would not exceed what was reasonably necessary, she held.

Significantly, the inspector ruled that the concept of conversion is not embedded in Class R, noting that there is no specific advice in the PPG as to what, if any, limits there should be on the extent of any associated operational development in a subsequent planning application.

STEP 2

Once you have obtained prior approval for flexible use of your dilapidated barn under Class R, together with planning permission for the associated operational development, see if everybody wouldn’t really have preferred to see conversion to a dwelling, after all.

A cunning plan or cynical exploitation of the system? You decide.

Section 4.3423 of DCP Online concerns Part 3 GPDO changes of use.

Just a cover

The issue of permanence has been discussed in a couple of DCP Blogs – Just kidding around and Permanent markers. Together with another recent case in Staffordshire (DCS Number 400-018-313), the evidence suggests that placing a structure on wheels following enforcement action will not beat the system.

The Staffordshire case concerned a timber-framed car wash canopy which had been mounted on wheels. The inspector noted the canopy was originally a permanent structure. He acknowledged that following the modification it would be a relatively straightforward matter to move the structure within the site, or to dismantle and remove it altogether. However, in terms of the operation of the site, the positioning adjacent to the portacabin and the site drainage was critical, for functional reasons, and for site safety and the stability of the canopy. Without the ability to rest the timber beams on the portacabin, he observed, the canopy would be highly unstable. In his assessment, the positioning of the canopy within the site was, for all practical intents and purposes, fixed such that it would not serve its intended purpose if moved from its present position.

The inspector judged that the mounting on wheels was in effect no more than an expedient carried out in response to the planning history of the site, rather than being indicative of an intention to make the canopy genuinely moveable. Accordingly, he found that the canopy was a building as defined in Section 336(1) of the Town and Country Planning Act 1990 and its erection was a building operation constituting development as defined by Section 55 (1) of the Act. In the absence of any relevant planning permission, he concluded that there had been a breach of planning control.

Sections 4.3112 and 22.112 of DCP Online are relevant to this issue.

No place for a child

The conversion of a maisonette in north London to two flats was allowed at appeal, despite council concern about the loss of family housing, for the unusual reason that the location was unsuitable for raising a family (DCS Number 400-018-332).

Dealing initially with access, the inspector saw that the point of entry to the maisonette was via a long metal staircase which was accessed via a service road at the rear of the retail parade, where there were parked cars, bins and other hazards such as beer kegs. The staircase itself was steep, narrow, unilluminated and exposed to the elements. Secondly, the site was close to a pub which had a smoking area directly adjacent to the access to the maisonette. The inspector shared the appellant’s concern that the smoking area created an unwelcome and intimidating atmosphere particularly in the evenings, and he did not doubt that patrons stood outside drinking, smoking and talking loudly until closing time, a significant source of noise and disturbance.

Even without taking account of other factors, such as the site’s proximity to the North Circular road and other commercial uses at ground floor level, including a bookmaker’s, the existing dwelling was most unlikely to provide a good environment in which to bring up a family, the inspector held.

The inspector concluded that whilst the development would diminish the council’s stock of family dwellings, the amenity of the existing home was so deficient that family occupation was unlikely and could not reasonably be changed to overcome its inherent deficiencies.

Further appeal examples concerning the loss of family housing can be found at section 11.1321 of DCP Online.