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Monotheism

We all know that we should avoid the deification of money but every now and then we might need a reminder. So was it due to divine intervention that a halo illuminated sign on a commercial building opposite Bristol cathedral was recently turned down at appeal (DCS Number 400-014-940)? God only knows, but the inspector considered that the overall size, height and illumination of the sign was such that it would detract from the imposing presence of the medieval cathedral. The appellant referred to commercial reasons for seeking the signage, which would comprise bronze coloured anodised aluminium letters with halo lighting designed to create a glow effect. The inspector countered that this was not a matter which she was able to take into account (heaven forfend!) as it did not relate to amenity or public safety.

The following DCP chapter is relevant: 30.033

Lacking support

An allowed appeal for the residential conversion of a Derbyshire pub (DCS Number 200-006-392) reminds us that the supporting text attached to a planning policy ought not to be relied on too heavily.

The inspector acknowledged that the supporting text to the relevant policy stated that as part of their submissions for planning permission applicants would be required to demonstrate the extent to which they had marketed the business as a going concern. She recorded, however, that the decision in Cherkley Campaign Ltd, R (on the application of) v Mole Valley District Council & Anor [2014] confirmed that something in the supporting text, if not referred to in the policy itself, cannot have the same force as a policy. She found that she did not have evidence of the marketing campaign, beyond the particulars of the property, to be satisfied that the appellant had demonstrated satisfactorily the marketing of the property as a going concern. But in any event, given the limited weight attached to this requirement, she concluded that the conflict with the policy was limited in this regard.

The following DCP chapter is relevant: 4.2

Working conditions

When considering the different functions of the description of development on a planning permission and of conditions it is worth remembering the explanation given by the judge in Cotswold Grange Country Park v Secretary of State for Communities and Local Government [2014]. He said “….the grant identifies what can be done – what is permitted – so far as use of land is concerned; whereas conditions identify what cannot be done – what is forbidden.

Keep it – it’s yours.

The judge continued “…Simply because something is expressly permitted in the grant does not mean that everything else is prohibited. Unless what is proposed is a material change of use …..generally, the only things which are effectively prohibited by a grant of planning permission are those things that are the subject of a condition,……”

Well, that’s straightforward.

Which is why we are now questioning the inspector’s conclusion in (DCS Number 400-015-174). In this case the inspector issued a lawful development certificate for the siting of static caravans for year-round residential use on a caravan park in Sussex. The point in dispute between the parties was whether a 1998 permission limited the use of the land to touring caravans. The description of development in this permission referred to ‘‘extension of caravan park to cater for an additional 10 touring caravans’ but there was no condition limiting use of the land for the siting of any particular type of caravan nor was there a condition limiting year round use of the site.

The case of I’m Your Man Ltd v SSETR [1999] established the principle that if a limitation is to be imposed on a permission granted pursuant to an application, it has to be done by condition, the inspector recorded. The council argued, on the other hand, that the I’m Your Man principle was not relevant because there would be a material change of use of the land from the siting of touring caravans to the siting of static caravans.

Jump back to the judge’s words here; “Unless what is proposed is a material change of use….”

The inspector reasoned that there is no separate statutory definition for a touring or static caravan but one single definition of a caravan which embraces both types of vehicle, and therefore both fell within the description of development in the 1998 permission, namely caravan park. On this basis she was not persuaded that a change in the use of a caravan park from the siting of touring caravans to the siting of static caravans would constitute a material change of use.

Readers, what do you think? Isn’t the inspector muddling the thing (the caravan) with the use (touring/residential), when they ought to be considered separately? We’re lining up with the council on this one.

The following DCP chapter is relevant: 4.4114

Scary stuff

As we know, powers under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 may be exercised only in the interests of amenity and public safety.

In the old days, when we were safe and life was simple, public safety considerations nearly always related to whether an advertisement would prove to be a distraction to motorists. Following recent violent incidents in London and elsewhere it seems that we live in a different world now.

In (DCS Number 400-015-126) an inspector granted consent for a double-sided digital screen forming the end panel of a bus shelter in north London. With regard to amenity, he found that the character of the street scene was vibrant and busy and he considered that the advertisement would not appear incongruous in its busy urban setting. What marks out this case as notable is that in the event of an emergency, Transport for London will be able to override the advertisement function and display an emergency message, alerting the public of immediate danger.

How times have changed.

The following DCP chapter is relevant: 30.033

Fashion advice

An LBD is a Little Black Dress. Always has been, always will be. An LBD is not a Limit of Built Development (DCS Number 400-015-158).

Check these things out, people!

Pester power

Those of us who are parents know that it can be very hard not to just give in to pester power, and we are wondering if this might give us the background to (DCS Number 400-015-070).

In this case, an inspector upheld an enforcement notice directed at the keeping of horses in the back garden of an end terrace house in Essex.

There was no dispute between the parties that the two horses were pet animals for the enjoyment of the occupants of the dwellinghouse. The inspector pointed out, however, that it is established law that a purpose incidental to the enjoyment of a dwellinghouse should be interpreted as reasonably incidental and not on the unrestrained whim of the occupier. She observed that the surrounding area was residential and high density and that the rear garden was relatively small. The horses did not graze in the garden and were walked regularly through the garden to nearby land, she noted. The wooden building in which the horses were housed did not take up the majority of the garden but she found that it was nevertheless a significant building in its residential context and highly prominent from and in close proximity to its residential neighbours. She had no reason to doubt the neighbour who described the occasional negative impact of the close proximity of the horses on her living conditions by reason of odour.

The inspector concluded as a matter of fact and degree that the keeping of horses was not for a purpose incidental to the enjoyment of the dwellinghouse. Consequently, the stable building did not benefit from permitted development rights and required planning permission.

Remember this tale when your little angel is pleading for a pony of their own.

The following DCP chapter is relevant: 12.8

Not dead yet

Despite the withdrawal of the Code for Sustainable Homes (CSH) in March 2015 an inspector has refused to delete a condition requiring a development in north London to achieve Level 3 of the Code, finding that it was a ‘legacy’ case (DCS Number 400-014-991).

‘Addressing climate change remains a central tenet of government planning policy. The means of doing so, insofar as the construction of new dwellings is concerned, may have changed since the grant of the original planning permission, but that does not negate the validity of the disputed condition, the development plan policy basis for it or what it seeks to achieve’, the inspector ruled.

This might be good news for the planet, but it contrasts with the decision we reported in Code for Sustainable Homes condition deleted. In that case, (DCS Number 400-009-897), the inspector decided that a condition requiring Level 4 of the Code to be achieved could be deleted following the withdrawal of the CSH. We have to presume that the inspector decided this was not a ‘legacy’ case.

That being so, reports of the death of the CSH have been greatly exaggerated.

The following DCP chapter is relevant: 4.412

Negative thoughts

In GPDO overrides use condition we reported an appeal case in which an inspector found that a condition stating that ‘the premises shall be used only for purposes falling within Class B1’ did not prevent the exercise of GPDO rights to convert the former barn to a dwelling. A recent court case, Dunnett Investments Ltd v Secretary of State for Communities and Local Government 29/3/17 appears to support his view.

In the case before the Court of Appeal a condition imposed on the office development stated “The use of this building shall be for purposes falling within class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the local planning authority first being obtained.” The judge ruled that in interpreting a planning condition which was said to exclude the operation of the order, three factors are relevant. Firstly, a planning condition can exclude the application of the GPDO. Secondly, exclusion might be express or implied, but a grant for a particular use cannot in itself amount to an exclusion. Thirdly, to exclude the application of the GPDO, the words used in the relevant condition, when taken in their full context, must clearly evince an intention on the part of the local planning authority to make such an exclusion. In his view, the condition excluded planning permission granted by Parliament under the terms of the GPDO. He opined that the first part of the condition set out the scope of the permission and the phrase “and for no other purpose whatsoever” was a clear and specific exclusion of GPDO rights.

The lesson here, perhaps, is that in order to withdraw permitted development rights by means of a condition it’s best to think negative – the condition needs to say “and for no other purpose whatsoever”. A positive construction – “shall be used only for purposes…” isn’t going to be enough.

The following DCP chapter is relevant: 10.3131

Seen off in court

In See you in court we reported East Hertfordshire council’s intention to challenge an inspector’s decision to overturn its refusal of prior approval for a residential barn conversion under Class Q of the GPDO. They did, they lost.

The council was concerned that the conversion would result in a dwelling in an isolated location, pointing to paragraph W(10) of Part 3 of the GPDO, which required it to have regard to the National Planning Policy Framework as if the application were a planning application; and Paragraph 55 of the NPPF states that local planning authorities should avoid new isolated homes in the countryside. The High Court judge decided, however, that to apply the NPPF’s policies with the same rigour in respect of accessibility of residential development to the Class Q prior approval process as would be applied to an application for planning permission for residential use would potentially frustrate the purpose of the introduction of Class Q, namely to increase the supply of housing through the conversion of agricultural buildings which by definition would very frequently be in the open countryside. The fact that an agricultural building was in a location where planning permission would not normally be granted for accessibility reasons would not amount to a sufficient reason for refusing prior approval. [East Hertfordshire DC v Secretary of State for Communities and Local Government 9/3/17].

The following DCP section is relevant: 4.3423

Total rubbish

In Important work we expressed astonishment that a S106 planning obligation had been required in order to secure the provision of a wheeled bin. With hindsight, we should have realised that we were only a short trundle away from a situation in which the lack of a S106 planning obligation to secure the provision of a wheeled bin would prevent development. But here we are:-

In (DCS Number 400-014-958) an inspector found a proposed site for a new dwelling to be a suitable location for housing in the countryside. He was also satisfied that the proposal would be an acceptable form of development having regard to the risk of flooding and the effect on the character and appearance of the area. An obligation to provide a contribution for a wheelie bin, however, was incomplete and flawed, and would not therefore take effect. That, he decided, was the prevailing consideration.

In our opinion here on the Blog, an outcome in which an otherwise satisfactory development is held up for want of £73.65 towards a wheelie bin has got to be total rubbish.

The following DCP section is relevant: 4.61