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Lights, camera, action!

Though it might appear that it’s all glamour in town planning those of us in the business understand that there is a lot of technical know-how involved behind the scenes. An appeal case concerning the refusal of a certificate of lawfulness for the use of a property in south London for a mixed use as a dwelling and a photoshoot and film location (DCS Number 400-015-391) illustrates the point. In this case the inspector considered whether the use had achieved immunity from enforcement action.

The house had been constructed in the 1960s and was complete with original fixtures, fittings and decoration typical of the period. Because of its originality and décor, the appellant had been able to offer the property for use as a film shoot location in conjunction with its primary use as a family home, and had done so at various intervals since February 2005. It was only in October 2015 that the council advised, after complaints by nearby residents, that a material change of use had occurred.

The inspector explained that in Secretary of State for the Environment, Transport and the Regions v Thurrock BC [2002], it was established that for an unlawful use to obtain immunity from enforcement action, it has to be exercised continually and without significant interruption for the whole of the relevant time period. He acknowledged that a mixed use had occurred since 2005, but judged that it had been intermittent, there having been significant gaps in the use of the property for simultaneous use as a dwelling house and as a photo shoot location. In particular, the council referred to three periods of four months, three months and five months when the photoshoot activities did not take place. The inspector further explained that the court had rejected the notion that time (for the purpose of the four- or ten-year rule) could continue to run where a use (or mixed use) became dormant for long periods. In the case before him the mixed use of dwelling and photo shoot location was dormant not just for the significant periods referred to by the council, but for noticeable periods each month when the property reverted to its residential use only.

The court had also held, the inspector continued, that the legally correct question to ask was whether a building had been used throughout the whole of the relevant period so that, at any time during that period, the council could have taken enforcement action. The appellant argued that the council could have taken enforcement action at any time during which the mixed use was taking place. The inspector agreed that this was the case; the council could have taken action the first time that the change of use occurred and any time after that when each photoshoot use was being carried out. He reasoned, however, that the situation had alternated between a single use and a mixed use, and that each time a photoshoot took place a breach of planning control had occurred.

The inspector concluded that the mixed use was intermittent and that, as a matter of fact and degree, it was not a continuous mixed use for the whole of the relevant period. Therefore, the appellant had not shown that the mixed use had been continuous for the necessary ten-year period and it followed that a certificate of lawfulness should not be issued.

The following DCP section is relevant: 4.535

Downside up

In an appeal case which is likely to turn the planning world on its head (DCS Number 400-015-553) an inspector awarded costs against a council in Cheshire, determining that it had not substantiated why the “so called upward overlooking” from the porch/shelter at a proposed dwelling would actually result in occupiers being able to look directly into the first floor rooms of the neighbouring house.

The following DCP section is relevant: 4.136

A lose-lose situation

Over the last few decades we have been quietly nursing the opinion that the civil servants charged with drafting planning legislation, before they even consider putting pen to paper or digit to keyboard, should be compelled to serve a period in a local authority planning department. Then, they might gain some insight into the difficulties that can arise for the poor souls who have to put their output into practice.

Explaining the legislation which led to the inspector’s decision in (DCS Number 400-015-484) to the appellant, for example, might prove a valuable learning experience.

This case concerns an appeal against the refusal of a certificate of lawfulness for a single storey rear extension to a house in a Bath suburb. Readers will be aware that any external finish not of similar appearance to the existing house is excluded from being permitted development by virtue of paragraph A.3(a) of Part 1 to Schedule 2 of the GPDO. The house is constructed of reconstituted stone with timber cladding and the appellant wished to construct the extension in matching materials. However, the house is within the World Heritage Site, where development is not permitted under paragraph A.2(a) if it would consist of or include the cladding of any part of the exterior of the dwellinghouse with stone, artificial stone, pebble dash, render, timber, plastic or tiles. Therefore, the extension would not be permitted development and would require planning permission.

The inspector remarked that the argument put forward by the appellant that this cannot have been intentional is simply not tenable. Sorry sir, we think it is.

The following DCP chapter is relevant: 4.3421

All wrong

In It’s not fair the Blog criticised the lack of consistency between two appeal decisions (DCS Numbers 400-010-764 and 400-012-610), involving the imposition of conditions requiring planning obligations. The first inspector had decided that it was acceptable to attach a condition requiring a planning obligation in order to ensure that the development was car-free, the second inspector decided that it was not, due to conflict with the PPG.

Turns out, following R (Khodari) v Royal Borough of Kensington and Chelsea [2017], that neither inspector had it quite right. The Appeal Court judge in this case noted that section 106 requires restrictions placed “on land” to be used in a specific way. In his view, this has to mean land in which the individual making the agreement has an interest. It could cover land beyond the application site where there is a direct relationship, but does not extend to restricting parking on the public highway.

The following DCP chapter is relevant: 10.31

The same hymn sheet

To an extent, the role of the planning system is to provide certainty to the development industry. Accordingly, it is always rather lovely to see consistency in decision-making, and it appears that inspectors are currently singing from the same hymn sheet with regard to the interpretation of planning conditions.

In (DCS Number 400-015-306) an inspector deciding an appeal against the refusal of prior approval for the change of use of offices in Hertfordshire to 84 flats decided that the phrase “and no other purpose whatsoever” in conditions attached to the original permission prevented the exercise of permitted development rights under Class O of the GPDO. Readers might recall that this is in line with the court ruling reported in Negative thoughts and the inspector’s finding in GPDO overrides use condition.

In support of his decision in the Hertfordshire case the inspector cited The Rugby Football Union v The Secretary of State for Local Government, Transport and the Regions [2001] in which it was stated that the words ‘for no other use’ had no other sensibly discernible purpose than to prevent some other use that might be permissible without planning permission. Also, with specific reference to the GPDO, he noted that Dunnett Investments Limited v Secretary of State for Communities and Local Government [2017] concluded that the condition, which in that case as well as in the case before him included the words “and no other purpose whatsoever”, was “a clear and specific exclusion of GPDO rights”. He concluded that the conditions were emphatic as to what uses they allowed, and were not ‘empty’ as they went beyond merely reiterating the development granted planning permission.

The following DCP chapter is relevant: 10.313

Multum in parvo

Or, you can find big stuff in little stuff. Not a very scholarly translation, admittedly, but multum in parvo neatly sums up the significance of punctuation in planning policy and decision making.

As a case in point, an inspector deciding an appeal against the refusal of outline permission for a motorists’ service area in Hampshire (DCS Number 200-006-419) ruled that restaurants and drive-thrus fall within the NPPF definition of leisure uses due to the choice of punctuation in Annex 2.

The inspector recorded that Annex 2 provides a definition of main town centre uses that includes: “…; leisure, entertainment facilities the more intensive sport and recreation uses (including cinemas, restaurants, drive-through restaurants, bars and pubs, night-clubs, casinos health and fitness centres, indoor bowling centres, and bingo halls);…”. In his opinion the presence of a comma rather than a semicolon between the words ‘leisure’ and ‘entertainment’ means that the list of examples that follow could be considered within the category of both leisure and entertainment rather than specifically one or the other. So, despite leisure and assembly uses being designated Class D2 in the Use Classes Order, and restaurants and hot food takeaways being designated either Class A3 or A5, he took the view that the proposed restaurant and the two drive-thru restaurant/coffee shops would fall within the definition of leisure development in terms of paragraph 26 of the Framework which concerns applications for retail, leisure and office development outside of town centres. Following on from this he dismissed the appeal, finding no proven need for the use in the open countryside.

The making of planning decisions has been described as a quasi-legal activity and the truth in this is rarely more apparent than when commas and semicolons are under discussion.

The following DCP chapter is relevant: 16.33

Closed for the season

Readers working in holiday areas might be interested in an appeal by a holiday caravan site on the Kent coast, in which they sought the reduction of their closed period from two months to two weeks (DCS Number 400-015-300). Planning authorities will often resist such proposals on the grounds that the use becomes tantamount to residential occupation. Whilst the inspector in this case rejected that argument he nevertheless dismissed the appeal on the novel grounds that permanent local residents ought to be allowed some peace and quiet during the winter months.

He reasoned that “….limiting the occupancy of holiday parks serves to highlight the changing character of the rural area throughout the year. It ensures that permanent residents locally are able to experience the tranquillity of the area when it is free from visitors. Extending the period of occupation to 11½ months would alter the character of the local area and would not provide the respite which occurs with the 10 month occupancy period. It would therefore lead to a noticeable change in the rural character of the area in the quiet early months of the year.”

The inspector decided that the condition should be retained in its current form.

The following DCP chapter is relevant: 24.241

The definition of curtilage

An inspector dealing with an appeal against the refusal of a lawful development certificate for a detached swimming pool and store at a house in west Yorkshire (DCS Number 400-015-315) has helpfully set out the case law on the definition of curtilage, which readers might find it useful to cut out and keep.

There is no authoritative or precise definition of the term ‘curtilage’, the inspector recorded. However, to fall within the curtilage of a building, land should serve the purpose of the building in some reasonably necessary or useful manner, he explained. This was established in Sinclair-Lockhart’s Trustees v Central Land Board [1950]. In Methuen-Campbell v Walters [1979] it was found that for land to fall within the curtilage of a building or other land there must be an intimate association. In the Court of Appeal case, Dyer v Dorset CC [1988], it was held that curtilage is a small area forming part and parcel with the house or building which it contained or to which it was attached. In that context, the judge commented that the kind of ground most usually attached to a dwelling house is a garden.

These authorities, including Methuen-Campbell, were reviewed in McAlpine v SSE [1995] which indicated, amongst other things, that curtilage is a small area about a building, that the curtilage land must be intimately associated with the building, and that the size of the area of ground is a matter of fact and degree. McAlpine also reiterated the finding in Sinclair-Lockhart that curtilage land should serve the purpose of the building within it in some reasonably necessary or useful manner.

The appellant in (DCS Number 400-015-315) also referred to the High Court case of Sumption v London Borough of Greenwich and Rokos [2007], the inspector noted. He explained, however, that Sumption does not undo the precedent set by the Court of Appeal, and so does not establish, as a matter of law, that the curtilage of a dwellinghouse can be expanded simply by annexing adjoining land, which itself is being used for garden purposes.

Applying these rulings to the case before him, the inspector reasoned that smallness (Dyer) of the land in question was a relative factor; a matter of fact and degree. In his view the appeal site was not disproportionately large in width, length or area given the large size of the detached dwelling house and its original plot. As a matter of fact and degree, he considered it to be small relative to the size of the dwelling. Moreover, it was not so large that the furthest extent of it could be said to be unable to have an intimate association (Methuen-Campbell) with the house. Its use as a cultivated garden with play equipment, still in situ at the time of his visit, indicated to him that it did have an intimate association with the use of the house, and as a domestic garden it served the purpose of the dwelling house in a reasonably useful manner (Sinclair-Lockhart). This appeared to him to have been the case for a number of years prior to the date of the application.

The inspector concluded that the appeal site formed part of the curtilage of the dwelling. Consequently, an LDC was granted for the proposed outbuildings as they would be permitted development within Schedule 2, Part 1, Class E of the GPDO.

The following DCP chapter is relevant: 4.3444 and 12.912

Use or abuse

Paragraph 112 of the NPPF states:

“Local planning authorities should take into account the economic and other benefits of the best and most versatile agricultural land. Where significant development of agricultural land is demonstrated to be necessary, local planning authorities should seek to use areas of poorer quality land in preference to that of a higher quality.”

What does ‘significant’ mean in this context, though? In (DCS Number 400-014-946) an inspector appears to have interpreted it as meaning ‘a lot’. In this case nine dwellings were allowed on agricultural land adjacent to the built-up area of a village in Kent. The council was unable to show a five-year supply of housing land, and the inspector found that the visual harm could be partially mitigated by landscaping. He recorded, however, that the site comprised around 0.49 hectares of Grade 1 (excellent) agricultural land. Nevertheless, he reasoned that whilst the NPPF expresses a preference for development on non-BMV land, it does not preclude development on BMV land.

Bizarrely, he also came up with this: ‘Perhaps the most compelling argument here is that the land is not currently in agricultural use and therefore there would be no loss of BMV.’

Yes there would. If fertile land is built on it is made sterile forever.

He continued, ‘The view expressed by some that the site could potentially be used for arable farming, is not a good one in principle as it could be applied to a wide range of sites to the further detriment of housing supply.’

But, national policy favours the use of poorer quality land over the best land and, as far as we know, no evidence had been provided to show that no poorer quality land was available.

He concluded, ‘Even if the land was in agricultural use, the loss of 0.49 hectares would be relatively small and could not reasonably be described as significant in the terms set out in the Framework.’

Given that the meaning of ‘significant’ is a matter of interpretation we can’t argue with this conclusion but we do take issue with the reasoning.

The following DCP chapter is relevant: 4.145

All at once

This doesn’t come up very often so we thought we’d share.

A condition requiring rooftop extensions at three adjacent properties in north London to be constructed concurrently has been upheld at appeal (DCS Number 400-015-207). The locally listed buildings formed part of a Georgian terrace and the council was concerned to protect the overall unity and character of the terrace. The owners of two of the properties were keen to proceed as soon as possible, whilst the third owner could not commit to the same time frame as the others. The inspector understood that, as the properties were in individual ownership, the condition was frustrating the ambition of others, particularly that of the appellant who was keen to progress a wider scheme of restoration for his property.

The appellant referred to advice in the Planning Practice Guidance, which states that conditions requiring development to be carried out in its entirety will fail the test of necessity by requiring more than is needed to deal with the problem they are designed to solve. The inspector reasoned, however, that specific policies and guidance had been put in place to enable the management and control of the character and appearance of heritage assets, particularly in terms of the protection of roof lines in the area. The condition did not require more than the problem it was designed to solve but rather was necessary to ensure a coherent roofscape. The inspector was satisfied that the condition met the tests set out in the NPPG and concluded that it should be retained in its present form.

The following DCP chapter is relevant: 4.423