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What’s the point?

The DCP Blog appears to have been in good company recently as it seems that the Court of Appeal has also been musing the meaning of the Written Ministerial Statement on wind farms. In a case involving a 50m high wind turbine proposed for a farm business in Nottinghamshire the court ruled that the WMS requirement to ensure that planning impacts have been ‘addressed’ does not mean they have to have been ‘eliminated’, R on the Application of Holder v Gedling Borough Council [2018].

The judges said “The usual position when considering an application for planning permission is that a range of potential benefits has to be weighed against a range of incommensurable potential detriments. It is rarely the case that it can be said that every potential detriment has been eliminated, as opposed to being mitigated and outweighed by countervailing benefits”.

We know that that is the usual position which begs the question – what is the point of the WMS?

Perhaps the current minister would be so kind as to clear this matter up?

Wind farms are discussed at section 26.511 of DCP Online.

How many wind turbines?

Q: How many wind turbines does it take to make up a wind farm?

A: One, apparently.

On 18 June 2015 the then Secretary of State for Communities and Local Government, Greg Clark, issued a Written Ministerial Statement entitled ‘Local Planning’.

The Minister said ‘I am today setting out new considerations to be applied to proposed wind energy development so that local people have the final say on wind farm applications, fulfilling the commitment made in the Conservative election manifesto.’ He continued ‘When determining planning applications for wind energy development involving one or more wind turbines, local planning authorities should only grant planning permission if…..following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.’ (The Blog’s emphasis).

But how can one wind turbine reasonably be described as a wind farm? If it is accepted that ‘a reasonable man’ would not describe one wind turbine as a wind farm, which is the subject matter of the new considerations, this leads to the conclusion that one wind turbine ought not to be subject to the requirement to prove community backing. Which leads us on to ….. an off-grid cottage in East Sussex where an inspector rejected a proposal for (actually two) domestic wind turbines (still not what the term ‘wind farm’ would bring to mind) (DCS Number 400-017-880).

The inspector noted that, in terms of the Written Ministerial Statement, there was a difference between the parish council and some local residents who supported the proposal, and the planning committee councillors and other local residents living in the immediate vicinity who objected to the proposal. There did not appear to be a clear consensus, she found. Accordingly, she concluded that it could not be said that the proposal had the backing of the affected local community. She considered, in any event, that the turbines would appear highly prominent upon a ridge and would be intrusive in the rural landscape. Notwithstanding the effect on the rural landscape, it seems highly unlikely that a domestic turbine would ever get the unanimous support of neighbours. Therefore, the WMS aimed at wind farms appears to be, perhaps unintentionally, putting the brakes on the generation of renewable energy from domestic turbines.

Perhaps the current minister would be so kind as to clear this matter up?

Wind farms are discussed at section 26.511 of DCP Online and householder microgeneration equipment at section 12.7.

It all depends

In The total effect we reported an appeal case (DCS Number 400-017-236) in which an inspector granted permission for the replacement of an existing dwelling, garage and outbuildings in the green belt with a new larger dwelling. The inspector based his decision on Tandridge DC v SSCLG & Syrett [2015] in which the court held that there is no reason in principle why the objectives of green belt policy cannot be met by the application of the NPPF exception allowed to replacement buildings to a group of buildings as opposed to a single building.

In (DCS Number 400-017-994), on the other hand, the inspector declined to take an outbuilding and garage into account. This case concerned the demolition of existing extensions and the erection of new extensions to a house in the green belt. The appellant contended that, for the purposes of volume calculations, the “original building” should include the main dwelling house as well as a detached outbuilding and garage.

The inspector noted the words of the judge in Tandridge which were “I do not consider that ‘building’ should be read as excluding more than one building, providing as a matter of planning judgment they can sensibly be considered together in comparison with what is proposed to replace them.” The inspector accepted that “….this is clear judicial authority and for the purposes of applying paragraph 89 of the Framework a building could, in certain instances, be considered in the plural.” However, he noted that the garage and outbuilding were located some distance from the main house and were closely related to the main road. He noticed that they were not read as an adjunct or addition to the main house and in spatial and visual terms he did not consider that the main house and outbuildings appeared as a very closely aligned group of buildings. As a matter of fact and degree, he held, the outbuildings were seen as being physically and visually separate. Consequently, he did not consider that the outbuilding and garage should be regarded as forming part of the original building (i.e. the main dwelling) for the purposes of volume calculations.

So that tells us that it all depends.

Green belt policy is discussed at section 4.251 of DCP Online.

Not there yet

After decades of tweaking you would think that the GPDO might have achieved near-perfection, such that only good quality design would escape the need for planning permission. Not so, sadly, as a recent appeal case in east London indicates (DCS Number 400-017-938).

The inspector found that “the dormer would appear as a dominant and disproportionate addition, which would sit awkwardly against the modest scale of the host roof” and “As such the scale, position and bulk of the dormer would unbalance the appearance of the host dwelling and would be conspicuously at odds with the largely simple and generally unaltered roof-scape…. “

The inspector concluded that the scale and position of the proposed rear dormer would be harmful to the character and appearance of the host building and the locality and consequently contrary to development plan policy. He recorded that Section 38(6) of the Planning and Compulsory Purchase Act 2004 states that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise. Accordingly, he decided that “The ability and likelihood that within the permitted development rights in the GPDO a very similarly positioned and scaled rear dormer could be constructed with comparable effect on the character and appearance of the locality, is a material consideration. In this instance it signals a determination other than in accordance with the adopted development plan and consequently, the appeal succeeds.”

Oh dear.

Permitted development as a fallback position in house extension proposals is covered at section 12.233 of DCP Online.

The deserted house

An inspector has decided to refuse a certificate of lawfulness for the residential use of two brick and stone buildings in Somerset (DCS Number 200-007-253), after deciding that the residential use had been abandoned. There had been no residential occupation of the buildings since 1958, he noted.

In considering the case the inspector usefully set out the case law on abandonment. He recorded that ‘abandonment’, is a legal concept used by the courts to describe the circumstances in which rights to resume a use which has been lawfully carried on in the past may be lost because of the cessation of that use. It was established in Panton and Farmer v SSETR & Vale of White Horse DC [1999], however, that a use which was merely dormant or inactive could still be ‘existing’ so long as it had already become lawful and had not been extinguished. Nevertheless, in Hartley v MHLG [1970], Lord Denning found that if a building or land remains “..unused for a considerable time, in such circumstances that a reasonable man might conclude that the previous use had been abandoned, then the Tribunal may hold it to have been abandoned”.

The inspector also recorded that In The Trustees of Castell-y-Mynach Estate v Taff-Ely BC [1985], the court established four criteria for assessing whether a use had been abandoned. These are: (1) the physical condition of the buildings; (2) the period of non-use; (3) whether there has been any other use; and (4) the owner’s intentions. In Hughes v SSETR & South Holland DC [2000] the Court of Appeal held, on the authority of Hartley, that the test of the owner’s intentions should be objective and not subjective. In this regard the test was the view to be taken by “a reasonable man with knowledge of all the relevant circumstances”.

Applying these principles to the appeal before him, the inspector considered that the physical condition of each building was very poor (1). He noted that there had been no active residential occupation for a period of approximately 58 years to the date of the application (2). He was satisfied that ad hoc and temporary use of the building for agricultural storage was inconsequential in terms of whether the primary residential use had been abandoned, and it was accepted by the council that there has been no other intervening use from 1958 to the date of the application (3).

The inspector acknowledged that the owner had treated the buildings with respect and care as a family heirloom to keep and maintain for future generations. However, that he physically maintained the buildings as structures could be consistent with abandonment or non-abandonment of the residential use of the buildings, the inspector reasoned. Rather, it indicated to him the likelihood of a long term desire that the buildings should be used residentially by following generations of the family (4).

In drawing all the factors together the inspector found it unlikely that the owner had any actual intention throughout his own life to continue residential use of the buildings. In his view the balance of the evidence indicated a greater likelihood that the owner abandoned the use long before his death in 2007 and hence before the date of the application.

For more on abandonment of use see 9.611 of DCP Online.

Suspicious minds

An inspector declined to issue a certificate of lawful development for the construction of an outbuilding in the rear garden of a house in Buckinghamshire, nonetheless finding that the council’s approach to the application was wrong (DCS Number 400-017-686).

The parties agreed that the outbuilding would fully meet size and other limitations within paragraph E.1 of Class E of the GPDO, the inspector noted. The single point of dispute was whether or not the outbuilding would be “required for a purpose incidental to the enjoyment of the dwellinghouse as such”, in order to be considered permitted development. The council maintained that the scale, size and internal layout of the building could easily be adapted for independent living purposes and so it could not be considered to be incidental to the enjoyment of the dwellinghouse.

The inspector ruled that this was the wrong approach in deciding whether a building would be incidental for the purposes of Class E. He explained that the council’s fear that the building could be adapted to become an independent dwelling house was irrelevant. In the event that the outbuilding were to be used in the way the council feared, such that it would amount to a breach of planning control, the council could exercise its enforcement powers.

Nevertheless, he recorded that it was for the appellant to demonstrate that the proposed uses would remain ancillary or subordinate to the main use of the property as a dwellinghouse, and that the floor space allotted to the proposed uses were reasonably required in order to accommodate them. In this regard he found that there was very little explanatory information to demonstrate that the outbuilding would be incidental. Given the considerable size of the building and based on the minimal evidence provided, he was not persuaded that the uses could not be provided in a more modest sized building. Hence the appellant had failed to demonstrate that the outbuilding would be reasonably required for purposes incidental to the enjoyment of the dwellinghouse such that it would be permitted development within Class E of the GPDO.

Part 1 permitted development is covered at section 4.3421 of DCP Online – Development within the curtilage of a dwellinghouse.

The meaning of life

You can’t say that planning isn’t a wide-ranging profession. In a recent appeal involving a roof terrace in north London (DCS Number 400-017-876) an inspector made reference to the meaning of life.

The inspector decided that the council’s refusal to grant a lawful development certificate for the existing use of the rear second floor roof terrace was not well founded. He explained that section 55(2)(d) of the Act sets out that “the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such” shall not be taken to involve development of land. The term “purpose incidental to the enjoyment of the dwellinghouse as such”, he continued, “has been subject to extensive case law over the years but I hope it is fair to say that, subject to a test of objective reasonableness, it is for the occupier to determine what incidental purposes they propose to enjoy. In other words if a householder wants to sit on their roof and ponder the meaning of life, they are perfectly entitled to do so as far as the planning legislator is concerned. There might be public agencies who, for health, safety or other reasons, might wish to intervene in the occupier’s contemplation, but the Local Planning Authority is not going to be one of them.”

In the circumstances the inspector considered that it would be appropriate to grant the LDC sought for the reason that there had been no development. There had not been the making of a material change of use because the dwellinghouse was still used as a single dwellinghouse and the use of part of its roof for sitting out, or indeed for any other reasonably incidental purpose, was not development by virtue of section 55(2)(d) of the Act, he concluded.

The legal scope of development control powers is explained at section 4.3 of DCP Online.

Not for long

In deciding an appeal against the refusal of advertisement consent for a 10m by 11m advertisement on a scaffolding shroud in a central London conservation area, an inspector decided that they were now part of the urban scene (DCS Number 400-017-787).

The shroud would display a 1-1 replica image of the host building, and from time to time an area of 11m by 10m would be used for advertisements.

Interestingly, the inspector ruled that the temporary nature of the proposal was fundamental to the decision-making process, rather than simply a factor to be weighed in the balance. Because of the absence of permanence, he reasoned, the judgement was not one that had a bearing on the effect on the significance of the conservation area. Rather, he held, it was one of a straightforward comparison between the impact on visual amenity of, on the one hand the scaffold and netting needed for the building operations, and on the other the shroud and its building façade image and a much smaller area for information and advertisements. He endorsed the opinion of a colleague inspector that shroud and wrap advertisements are now generally accepted as temporary features in a busy urban street scene, provide colour and interest, ‘announce’ that a redevelopment is being undertaken to the long term benefit of the street scene, and that provided they do not overwhelm their surroundings, ‘as a short-term measure to cover scaffolding many proposals would seem to offer only a benefit to the character and appearance of the surrounding area’.

The inspector concluded that the proposal would enhance the visual amenity of the conservation area compared to the alternative of leaving the scaffolding and debris mesh unaltered during building works. He is no doubt right on that point but what do readers think about his reasoning with regard to the temporary or permanent nature of advertisements? We have to confess we are a little unnerved here.

More on scaffold shrouds can be found in section 30.0342 of DCP Online.

Reasonably necessary

Planners working in the countryside will be very familiar with the phrase ‘reasonably necessary for the purposes of agriculture’ from the GPDO. It isn’t always straightforward, though, to judge what is and what isn’t ‘reasonably necessary’. An appeal case has come up involving an animal feeding area which the inspector found could be considered to be ‘reasonably necessary for the purposes of agriculture’ (DCS Number 200-007-212). As it involved a type which we have never come across, we thought it might be helpful to report it.

The land had been excavated to reveal a hard surface, and the arisings used to form a bunded enclosure. The council reasoned that the farm was in close proximity to the animal feeding area, where there were ample buildings and fields to accommodate sheep, and that the appellant had run a successful sheep farming business for some 15 years without a need for the development. The inspector acknowledged the previous arrangements for feeding sheep, but reasoned that they did not preclude improvements that might result in more efficient solutions or those which were better for animal welfare reasons. In her view, the requirement for works to be ‘reasonably necessary for the purposes of agriculture’ does not mean that only minimum standards can be considered to fall within permitted development rights.

Having found that the development was reasonably necessary for the purposes of agriculture the inspector noted, however, that Clause A.1 sets out development that is not permitted by Class A of Schedule 2, Part 6 of the GPDO. A.1(d)(i) was of relevance, she found, as it states that development is not permitted where the ground area which would be covered by any works or structure for accommodating livestock or any plant or machinery arising from engineering operations would exceed 465 square metres. Having considered the judgment in Taylor and Sons (Farms) v Secretary of State for the Environment, Transport & Regions, [2001], she ruled that ‘accommodating’ has a broader meaning than merely providing habitation. She agreed with the council that it would encompass the feeding area. Since the works exceeded the 465 metre limitation the development could not constitute permitted development, she concluded.

Section 4.3425 of DCP Online concerns Part 6 of the GPDO.

Raising the bar

We all know that we sometimes have to walk a tightrope, balancing public interests against the interests of planning applicants. An inspector recently did just that, in a finely balanced decision relating to an appeal against the refusal of permission for a flying trapeze in the back garden of a house in Gloucestershire (DCS Number 400-017-774).

In the end the decision swung against the appellant, the inspector concluding that, even though users of the trapeze rig would be focusing on their activities rather than looking towards other properties, the perception of overlooking would remain. The rig would also appear as an incongruous feature in the residential context, he held.

Thank goodness the inspector knew which way to jump, otherwise the whole thing could have turned into a three-ring circus.

The issues raised by a number of other types of garden structures are illustrated at Section 12.837 of DCP Online.