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The Hokey Cokey

In, out, in, out…..

In a case involving a garage extension at a house in Surrey (DCS Number 400-016-084), an inspector has pointed out that with regard to eaves overhangs there is a difference between Class A of the GPDO, which deals with extensions to dwellinghouses and Class E, which deals with buildings incidental to the enjoyment of a dwellinghouse.

The appellant argued that the council had ignored roof overhangs and gutters for the purposes of measuring the two metre distance to the boundary when it had granted a certificate of lawfulness for a rear extension, so it was inconsistent to now include them when considering the garage extension.

The inspector explained that there is no specific advice in the Technical Guidance for Class E about how to measure the distance between the boundary and a building and no mention of ignoring guttering or an overhanging roof. In fact, he found, the guidance is quite clear “If any part of the building, container or enclosure is within two metres of the boundary of the curtilage of the house, then the height limit for the whole development is restricted to 2.5 metres if it is to be permitted development”. In the appeal before him the overhanging element of the roof and guttering were part of the building proposed and those parts would be closer than two metres to the boundary. The roof was too tall, and therefore the proposed extension to the garage was not permitted development.

Any ideas, dear readers, as to why overhangs should be in or out of the calculations according to which Class of the GPDO the development falls within?

The following DCP section is relevant: 4.3421

Sic erat scriptum

Readers who shop in Marks and Spencer might recall that the store was in trouble with the grammar police some years back for displaying signs at some of its tills which said ‘Six items or less’. The offending signs were replaced swiftly with signs indicating that the tills were restricted to customers purchasing the more grammatically correct ‘Six items or fewer’.

An inspector dealing with an appeal in Hertfordshire (DCS Number 400-016-037) has drawn attention to the fact that the same grammatical howler occurs in a written ministerial statement: ‘The Written Ministerial Statement (WMS) of 28 November 2014 states that tariff-style contributions …. should not be sought from developments of 10 dwellings or less [sic].‘

Quite right, too. The Blog hopes to see the publication of a correction very soon.

Grammar police – they’re there for you.

More of the same

The nature of intensification has been examined by an inspector who issued a certificate of lawfulness for an additional six units on a park home site in Hertfordshire (DCS Number 400-015-923).

The inspector explained that intensification does not amount to a material change unless and until the fundamental character of the use changes, for example where the land use planning consequences are materially different. He further explained that it can be necessary to consider both what would be happening on the land and the impact off the land when deciding if the character of the use has changed.

The inspector recorded that in R (John Childs) v First Secretary of State and Test Valley Borough Council [2005], it was held that a change in the number of caravans, however great, was capable of amounting to a material change of use. The court upheld the inspector’s finding that a change from four caravans to a proposed use for eight caravans would be material based upon a change in the character of the use and the impact on the immediate surroundings including visual amenity and traffic.

The appeal inspector reasoned, however, that all cases must be assessed on their own merits, noting that in the John Childs case the inspector was dealing with an open field in an undulating landscape and with a proposal to double the number of caravans. In the case before him, on the other hand, there would be only a very modest percentage increase in numbers, with nothing to suggest that there would be a material impact on the highway network. In addition, he was clear in his mind that the proposal would not visually change the definable character of the site or the planning unit as a whole, when viewing from the main entrance to the site. He concluded that the proposed siting of the caravans would not amount to the making of a material change in the use of the land that would require planning permission.

The following DCP section is relevant: 4.327

Road safety matters

In upholding an enforcement notice directed at the storage and sale of building materials at a farm in a Shropshire village (DCS Number 200-006-637) an inspector has given a ruling on the interpretation of NPPF guidance on highway safety.

Local residents and the council were concerned about the effect of the development on highway safety and the free flow of traffic on the highway network, in particular with regard to HGVs. The inspector agreed that the local road network was wholly unsuitable to accommodate the level and nature of traffic associated with the use of the site.

The inspector noted that the third bullet point at paragraph 32 of the NPPF states that development should only be refused on highway grounds where the cumulative residual impact would be severe. He acknowledged that there is no definition of the word severe in the NPPF but remarked that it is clearly an extremely high bar. It appeared to him, however, that paragraph 32 is referring to matters of highway capacity and congestion, as opposed to matters of highway safety. In this regard he noted that the courts have held that paragraph 32 should not be interpreted to mean that anything other than a severe impact on highway safety would be acceptable [Mayowa-Emmanual v Royal Borough of Greenwich 2015].

The inspector decided that the increase in the use of the road network had been detrimental to highway safety and to the way in which the road network was used by all forms of traffic. He took the view that the risk of accidents, damage to the highway network, and the overall change in the character of the preferred route were factors that, in combination, had had an extremely significant, and one could say severe, impact on local road users.

The following DCP section is relevant: 21.1

Horsey culture

The Dartmoor National Park Authority’s Dartmoor Ponies Factsheet states that “The ponies on Dartmoor are an integral part of the landscape and many visitors to the National Park come specifically to see these animals in their natural environment.”

That being the case, the Blog suggests that they should be recognised as a landscape feature, potentially of equivalent weight in the planning balance as any other landscape feature. An inspector who dismissed an appeal against the refusal of planning permission for a stable block at a farm in the national park does not seem to have seen things our way, however. (DCS Number 400-015-825).

In this case the inspector found that the stable block would not be well related to any other buildings but would appear as an isolated structure. It would therefore appear as an incongruous feature and harm the pastoral character of the land, she decided. She recognised that the appellant had sought to site the building as close to other buildings as the constraints of her land ownership allowed. She reasoned, however, that while it was the appellant’s wish to limit the built development and keep Dartmoor ponies, which are traditional and commonly seen in the landscape, planning permission goes with the land rather than the individual. As such the nature of the use could change over time. She concluded overall that the development would result in harm to the landscape and scenic beauty of the national park.

Do readers have any views on the extent to which the planning system ought to be involved in the support of native breeds?

The following DCP section is relevant: 23.23

Meaning to say

Sometimes we say things without really thinking through what they mean. We all do it, and the secretary of state is probably no exception. Accordingly, it was very helpful of an inspector, dealing with two called-in applications for a wind farm expansion in Lancashire (DCS Number 200-006-601), to explain the implications of a written ministerial statement to him.

The inspector determined that the transitional provisions set out in the written ministerial statement made on 18 June 2015 (WMS) applied. This WMS provides that in such instances, local planning authorities can find the proposal acceptable if, following consultation, they are satisfied it has addressed the planning impacts identified by affected local communities and therefore has their backing.

Many local residents argued that the WMS means that local people should have the final say and they considered that the scheme did not address their concerns. To the inspector’s mind, however, the part of the WMS that provides “and therefore has their backing” means that if the secretary of state is satisfied that the proposal has appropriately addressed the planning impacts identified by affected local communities, as a consequence, it would have their backing. If the secretary of state took a different view, and found that the ‘backing’ part of the sentence should be given a meaning detached from the ‘addressed’ part, then it would be necessary to devise some method for gauging and weighing levels of support and objection, the inspector reasoned. He remarked that this would be no easy task; there is no guidance about how it might be done, and nothing in the WMS that implies that compliance with it would be dependent upon the outcome of some form of referendum.

The secretary of state appears to have accepted the inspector’s reasoning, accepting his recommendations in respect of both schemes. In particular, in respect of the second scheme the secretary of state agreed that none of the issues raised by affected communities were of sufficient substance to bring the proposal into conflict with the WMS.

The following DCP section is relevant: 26.532

It’s 20 hectares

In Use or abuse we queried the meaning of ‘significant’ in the context of Paragraph 112 of the NPPF, which relates to the loss of agricultural land.

An inspector dealing with an appeal against the refusal of planning permission for 28 dwellings in Leicestershire has given us the answer (DCS Number 200-006-606).

“The proposed scheme would result in the loss of 2.58 hectares of grade 3 agricultural land to development” the inspector recorded. “Land within grade 1, 2 and 3a is defined in the glossary to the Framework as being the best and most versatile agricultural land. In preference to the development of this type of land the use of land of poorer quality is encouraged by paragraph 112 of the Framework. This government policy though relates to proposals involving the development of significant amounts of such land. The view of the Council, expressed in its Development Control Report on the application, is that the development of less than 20 hectares of such land is a low amount of land. I agree with that position.”

So there we have it. ‘Significant’ in the context of Paragraph 112 of the NPPF means 20 hectares. For the time being.

The following DCP section is relevant: 4.145

Corporate colours

We all know that advertising can be subtle, a characteristic recognised by an inspector dealing with an appeal against a refusal to grant express consent under the advertisement regulations for the painting of a shopfront in a Warwickshire town centre (DCS Number 400-015-736).

In this case the parties disagreed on whether the application of navy blue and white striped paintwork to two pilasters should be defined as being an advertisement.

The inspector recorded that Section 336(1) of the Town and Country Planning Act 1990 defines an advertisement as:

“any word, letter, model, sign, placard, board, notice, awning, blind, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction, and (without prejudice to the previous provisions of this definition) includes any hoarding or similar structure used or designed, or adapted for use and anything else principally used, or designed or adapted principally for use, for the display of advertisements.”

The inspector noted that the external redecoration of the existing shopfront formed part of the description of that which had been applied for and full details of the redecoration had been submitted including paintwork design. In addition, the council had submitted photographs of similar horizontal striped navy blue and white paintwork used by the occupying business across its other premises. He observed that the paintwork formed part of the company’s brand identity, being synonymous with its brand name. Taking into account this expression of the company’s corporate distinctiveness he found that, in combination with the other matters, it was reasonable to interpret this element of the external redecoration as being to all intents and purposes for advertisement, announcement and direction.

The following DCP section is relevant: 4.3613

The whole is greater….

….than the sum of its parts.

Here at the DCP Blog we were interested to see Aristotelian theory applied to an appeal against the refusal of prior approval for a barn conversion in Oxfordshire (DCS Number 200-006-547).

Development consisting of building operations reasonably necessary to convert an agricultural building to a dwelling house is permitted under Q(b) of Schedule 2, Part 3 of the GPDO, and the appellant contended that the retention of the building’s steel frame meant that the works did not go beyond what was reasonably necessary. The inspector, however, referred to Hibbitt v the Secretary of State for Communities and Local Government and Rushcliffe Borough Council [2016] which had concluded that another inspector had been correct in her analysis that the works needed for the conversion to a dwelling of a steel-framed barn, which was roofed and open on three sides, went a very long way beyond what might sensibly or reasonably be described as a conversion.

The inspector in (DCS Number 200-006-547) held that the findings of the judgement were particularly relevant to the appeal before him, in stating that the development was “in all practical senses starting afresh, with only a modest amount of help from the original agricultural building” and also that there would be numerous instances where the starting point, the agricultural building, might be so skeletal and minimalist that the works needed to alter it to a dwelling would be of such a magnitude that in practical reality what was being undertaken was a rebuild.

The appeal building had a low pitched roof with small gable ends, supported on slender steel struts, and had no sides. The inspector considered that it too could reasonably be considered to be minimalist and skeletal. He reasoned that while no individual parts of the works proposed were contrary to the provisions of Class Q of the GPDO, they would together make comprehensive additions to the existing structure in order to comprise a functional dwelling, with very limited contribution from the existing frame. Their cumulative total would, he determined, go beyond what could be considered to be reasonably necessary for conversion of the building, and would amount to a rebuild or fresh build in the terms of Hibbitt, rather than a conversion. As a result, he concluded, they would fail to comply with the limitations and restrictions specified in Class Q and would not therefore comprise permitted development.

The following DCP section is relevant: 4.3423

Hug a tree

We were surprised, and a little alarmed, to find the following information in an appeal against a tree replacement notice relating to trees felled in southwest Scotland (DCS Number 400-015-800):

“The English publication “Tree Preservation Orders : A Guide to the Law and Good Practice” (2005) indicates that a provision in a tree preservation order prohibiting cutting down or removal of independent trees or groups of trees only applies to trees in existence at the time the order was made.”

Given that many tree preservation orders are of considerable age it seems almost certain that by now there must be many significant trees which are unprotected and therefore vulnerable. Whilst this could be useful information for developers it might be a signal to local authorities to review existing TPOs.

Curiously, the situation is different in woodlands. Here, the reporter noted, a tree preservation order covers trees in the woodland including those which have grown since the order was made.

The following DCP section is relevant: 29.1