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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

Country cousins

“He’s in The Guards and only comes down at weekends”. Someone talking about their son, maybe, or a friend? No, the owner of a horse explaining to a planning officer why the animal was stabled in the outbuilding of a Worcestershire pub which lacked the one acre of grazing land demanded by local plan policy. Oh, we could write a book, we really could.

Anyway, those working in rural areas will know that it is important to distinguish between land on which horses are being kept and land on which horses are being grazed. This is where Sykes v Secretary of State for the Environment and Another [1981] comes in. This case was cited in (DCS Number 400-016-350) which concerns an enforcement notice directed at the equestrian use of agricultural land in Somerset. The inspector explained that:-

“The judgement in Sykes established that simply turning horses out onto land with a view to feeding them from the land amounts to grazing. What does not fall within the definition of agriculture is the keeping of horses, but the Sykes judgement recognised that horses may be both grazed and kept in the same place. In determining which of these is the primary use, the question that must be addressed is “what is the purpose for which the land is being used?”

In the case before him the inspector judged that the character of the use of the land had remained agricultural. The pony was grazing a small portion of the land, associated temporary fencing was used for grazing management, and a building/structure was used primarily for agricultural rather than equestrian purposes. As a matter of fact and degree he considered that there had not been a change of use of the land from agricultural to a mixed use of agricultural and equestrian. He quashed the notice.

In case you were worried about the Guards horse – he was grazed on land belonging to his country cousins.

The following DCP section is relevant: 23.2111

 

Let us prey

Inspectors can never know exactly what they might encounter on a site visit but the following description of development must have introduced a certain level of apprehension.

“The development proposed is new detached dwelling, detached garage with first floor accommodation and lion enclosure with fencing.”

This appeal case (DCS Number 400-016-290) relates to the refusal of planning permission for the development at a zoo in Oxfordshire. The inspector observed that the proposal would be located in open countryside some distance away from the nearest villages. The design of the dwelling would seek to mimic the appearance of an African hunting lodge.

The inspector recorded that Paragraph 55 of the National Planning Policy Framework guides that new isolated homes in the countryside should be avoided unless there are special circumstances, including the essential need for a rural worker to live permanently at or near their place of work in the countryside.

The council accepted that there would be a need for supervision of the lion enclosure and the inspector concurred with this. He decided, however, that the proposal would give rise to a new dwelling in an open countryside location that would be some distance away from the goods and services available in the nearest centres of population and therefore would not be sustainable. In addition, the scale and design of the building would far exceed the requirements for supervision of the lion enclosure, he determined, and it would appear as a conspicuous feature in the landscape with an incongruous architectural style that would not accord with local distinctiveness considerations.

As ever, an inspector taking a pride in the job.

The following DCP section is relevant: 9.83

The test of time

An appellant hoping to obtain a certificate of lawfulness for two proposed outbuildings at a house in Cornwall has failed to persuade an inspector that an Article 4 Direction made in 1969 was no longer of any effect (DCS Number 400-016-266).

The inspector noted that a Direction under Article 4(1) of the Town and Country Planning General Development Order 1963 had been made in April 1969. This removed permitted development rights in respect of householder curtilage buildings, amongst other things. The Direction aligned closely with the boundaries of the conservation area, covering the historic core of the village and the wooded steeply rising slopes which formed an important setting for the historic core. The council considered that any development within this setting was likely to interrupt the unspoilt nature of the valley and compromise the character and appearance of the locality. Planning Practice Guidance confirms that an Article 4 can remain in place once confirmed, the inspector recorded, but that it should be monitored to make sure that the original reasons for using the power remain valid. He agreed with the council that the original reasons remained valid.

The inspector identified the question as being essentially whether the 1969 Direction removed permitted development rights under the Town and Country Planning (General Permitted Development) (England) Order 2015.

The appellant’s position was that the 1963 GDO was no longer in force as it relied on repealed legislation. He maintained that the 1963 GDO was not carried forward to the 2015 GPDO, and it pre-dated the Interpretation Act 1978.

The council pointed out, however, that the 1973 GDO, at Article 20(2), contained a savings provision which indicated that any Directions in force under Article 4 of the 1963-1969 GDOs should continue to have effect. This was repeated in the 1977 GDO at Article 24(2), allowing the 1969 Direction to continue to have effect. The Interpretation Act 1978 ensured continuity in subsequent amendments to the GDO.

The inspector concluded that the council had correctly interpreted the position in respect of the 1969 Direction and he was therefore not persuaded that an Article 4 Direction made under the 1963 GDO was of no effect. Then he had a lie down.

The following DCP section is relevant: 4.345

Gone up in smoke

A central London café has failed to convince an inspector that shisha smoking at the front of the premises is lawful, the inspector distinguishing shisha smoking from cigarette smoking (DCS Number 200-006-729).

The council maintained that shisha smoking was not incidental or ancillary to the principal use as a sandwich bar/café, but had become a separate use within a composite planning use as a sandwich bar/café/shisha smoking establishment.

The inspector took the view that shisha smoking differs from other forms of tobacco smoking in a number of ways. He noted that it entails use of special equipment, principally shisha pipes and a charcoal brazier, and that this equipment is effectively hired by customers, and prepared for use by waiters. This differs from other forms of smoking, he reasoned, which do not require special equipment, and are generally portable for the smoker. He noted that the smoking of cigarettes and cigars can be carried on in any place where it is lawful, and there is no need to visit a particular place offering a special service. In addition, in contrast with going out for a meal and perhaps having a cigarette, shisha smoking appeared to him to be very much a social activity in itself, sometimes with pipes being shared, and with food often comprising little more than a snack.

In terms of revenue, it appeared to the inspector that shisha sales had come to be a predominant aspect of the business, and this was supported by the proportion of customers observed to be smoking shisha. The relatively limited number of food items on the menu, the minimal kitchen facilities, and the presence of staff carrying out quite specialised shisha duties gave further indication that shisha smoking had become an integral part of the establishment’s offer, quite over and above what might be considered as a normal ancillary or incidental use. As a matter of fact and degree he considered shisha smoking had become an identifiable separate element in the mixed use of the premises.

The inspector concluded that shisha smoking had become a distinctly separate activity from those that would be considered as normally ancillary or incidental to the lawful sandwich bar/café use of the appeal premises. As a result a new sui generis mixed use as a sandwich bar/café/shisha smoking establishment had been created. This was a material change of use for which no planning permission had been granted and he therefore refused to issue a certificate of lawfulness.

The following DCP section is relevant: 4.321

Back to basics

In addressing an appellant’s argument that a 2005 planning permission for a residential barn conversion in north Yorkshire authorised the demolition and rebuild of the building, an inspector has taken us back to basics (DCS Number 200-006-732).

The site had been occupied by a brick barn and a portal frame building but these had substantially disappeared through demolition and storm damage. The appellant argued that the lack of a condition attached to the 2005 permission requiring adherence to approved plans was significant and recognised that considerable rebuilding work was likely to be needed.

The inspector remarked that “Generally, in interpreting planning permissions, the basic principle is that a permission should stand by itself and the meaning be clear within the ‘four corners’ of the document. The public should be able to rely on a document that is plain on its face without having to consider whether there is any discrepancy between the planning permission and the application. In Miller-Mead v Minister of Housing and Local Government [1963], Lord Denning, Master of the Rolls found that ‘…a grant of planning permission runs with the land and may come into the hands of people who have never seen the application at all. It cannot be cut down by reference to the application…’ ”. The implications, he explained, were that any controls or limitations attached to a planning permission need to be clearly and precisely stipulated within the four corners of that permission.

The inspector noted that the approved drawings showed little in the way of reconstruction work to the walls of the original barn. In 2005 a condition requiring adherence to drawings was not routinely imposed on planning permissions but was ‘taken as read’, he recorded. He considered that it was therefore not reasonable to assume that there was any specific recognition that demolition would be necessary. In any event, he continued, the general principle is that the intention of either the developer or the council is immaterial; it is the content of the documents that were placed on the planning register that is relevant.

The inspector found that what was left of the structure on site was incapable of conversion and declined to issue a lawful development certificate.

The following DCP sections are relevant: 10.111 and 10.139

Open all hours?

Given that most of us have access to electronic means of communication at all times of day and night there is perhaps a risk of forgetting that planning legislation still recognises ‘business hours’. A planning authority in Sussex was reminded of this when an inspector dealing with an appeal relating to an agricultural barn found that its decision at 17:45 requiring prior approval was not issued “within the prescribed 28 day deadline, having regard to normal business hours” (DCS Number 400-016-112).

The inspector recorded that there is a 28 day determination period running from the date of the receipt of the application for the authority to determine whether prior approval is required or not. Paragraph 2(7) of Schedule 1 to the Town and Country Planning (Electronic Communications) (England) Order 2003 and Article 2(9) of the GPDO are clear, he noted, that communications received outside of normal business hours shall be taken to have been received the next working day. Furthermore, section 336(4A) of the 1990 Act indicates that an electronic communication, used for the purposes of giving a notice, shall be taken to have been received the following day if received outside of that person’s business hours.

The appellant’s agent indicated that his normal business hours were up to 1730 hours during the working week. The planning authority’s point that the agent’s business hours were not published on the company website or other media received little sympathy from the inspector. “….this merely emphasises the need to check them further if such an important notice was required to be sent within a prescribed deadline”, he ruled.

The following DCP section is relevant: 4.3425

Tidy!

Local authorities will know that it is not always easy to get developers to tidy up after they have finished building. Accordingly, here is an appeal decision that might come in handy.

An inspector dealing with an enforcement appeal in south Wales ruled that a permitted development right to use land temporarily in connection with the construction of a dwelling ceased with the completion of that development (DCS Number 400-016-173).

The enforcement notice alleged a material change of use of the land by placing a large lorry container for storage of building materials, and the depositing of building materials and rubbish. The appellant argued that the development constituted a temporary use of the land whilst building operations were being carried out on the adjoining land, and that as such it comprised permitted development under the Town and Country Planning (General Permitted Development) Order 1995 (the GPDO).

The inspector recorded that Schedule 2(4) Class A of the GPDO permits “the provision on land of buildings, moveable structures, works, plant or machinery required temporarily in connection with and for the duration of operations being or to be carried out on, in, under or over that land or on land adjoining that land”. Subsection A.2 states that development is permitted subject to the conditions that, when the operations have been carried out – (a) any building, structure, works, plant or machinery permitted shall be removed, and (b) any adjoining land on which development permitted has been carried out shall be reinstated to its former condition as soon as reasonably practicable.

The inspector found it clear that whilst the temporary use of the notice land for the placement of the storage container and for works comprising the stockpiling of excavated materials and storage of building materials in connection with the construction of the dwelling might have been permitted under the GPDO for the duration of the construction period, such permission would no longer apply after the duration of the development operations concerned. The argument that continued use of the notice land for similar purposes in connection with the construction of another dwelling was permitted development did not succeed, he ruled, because the notice land did not adjoin the land on which the subsequent building operations were being carried out.

The appellant also argued that the change of use was not material and so was not development. The inspector did not agree. The land was evidently formerly agricultural, he reasoned, and that was the lawful use which it retained following expiry of the permitted temporary use allied to the construction of the dwelling.

The following DCP section is relevant: 4.3424