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Eavesdropping

A ruling from an inspector who issued a lawful development certificate for a rear extension to a house in Northamptonshire (DCS Number 400-015-584) tells us that we can drop eaves from certain* permitted development calculations.

The council accepted that the extension complied with all the criteria and conditions of Class A, Part 1, Schedule 2 of the GPDO, other than criterion (i). To satisfy this criterion the extension must not be within 2 metres of the boundary of the curtilage of the dwellinghouse where its eaves height exceeds 3 metres, the inspector recorded. The side wall of the extension was not within 2 metres of the boundary of the curtilage, but the extended eaves of the roof of the extension was within 2 metres of the boundary and exceeded 3 metres in height. For this reason the council maintained that the extension did not comply with criterion (i) of Class A.

The inspector referred to the Technical Guidance to the GPDO. This refers to ‘any part of a proposed extension’ and the council regarded the extended eaves of the roof to be a part of the extension. The inspector reasoned, however, that diagrams and text of the Technical Guidance consistently refer to ‘walls’ as being the outer limits of permitted development. Furthermore, he noted, it is common practice for buildings to be measured, for setting out purposes and to assess their ground coverage, from the outer faces of their external walls. He added that measuring a building by taking into account eaves overhangs and gutters was imprecise. Also, an eaves overhang of a building or extension does not result in the building or extension being any higher than it would be without the overhang.

For all these reasons, he concluded, it is reasonable to assume that ‘any part’ of an extension refers to any external wall of the extension.  Therefore, the eaves overhang of the rear extension at the appeal dwelling could be disregarded to assess whether the extension complied with the provisions of Class A, Part 1, Schedule 2 of the GPDO.

The extension therefore satisfied criterion (i), and could thus be regarded to be permitted  development, he determined.

*Not all!

The following DCP section is relevant: 4.3421  

Flat earth theory

The not-infrequent ruling that a hard standing results in a loss of openness in the green belt and is therefore inappropriate development must cause some consternation for an appellant who is wondering how, when it’s only a few centimetres thick.

The inspector who explained that it is the use of the hard standing that causes the trouble is therefore to be commended (DCS Number 400-015-581). In this case an enforcement notice directed at a hard standing adjacent to a barn on a farm in Surrey was upheld. The inspector acknowledged that the area of hard standing by itself had a relatively minor impact on openness, being sited next to the barn and close to other buildings. However, it had to be viewed in the context of the likely use to which it was put, he said. The hard standing was occupied by several items of agricultural machinery and mobile attachments such as trailers and harrows, he observed. He judged that due to their solidity, height and bulk, they would not preserve the openness of the green belt. The planned storage of haylage on the area would add to the loss of openness and whilst this element of storage would be seasonal, in overall terms he concluded that the effect of the development on the openness of the green belt would be relatively permanent.

That explains it! Perhaps others might follow suit.

The following DCP section is relevant: 4.2513

Never heard of it

In referring to Dunnett Investments Ltd v SSCLG and East Dorset District Council [2016] an inspector dealing with an appeal against the refusal of a certificate of lawfulness to confirm the unfettered A1 retail use of a unit on a retail park in Newcastle has helpfully set out the judge’s summary of the law on conditions. Take a peek here (DCS Number 400-015-376).

A condition on the planning permission relating to the retail unit restricted the amount of floorspace which could be used for the sale of food. The appellant argued that because the condition did not specifically exclude the operation of the Use Classes Order the unit could operate as an unfettered A1 use.

The inspector observed that the principles set out by the judge were straightforward and clear especially “planning conditions should be construed in a common sense way so that the court should give a condition a sensible meaning if at all possible”. In the inspector’s view the condition was unequivocal, it stated that there should be no food sales from the shop units except as described in the condition. No other interpretation of the condition was possible, he ruled, it being entirely unambiguous. The appellant nevertheless argued that regardless of the wording, because the Use Classes Order was not mentioned it could not be excluded and no reasonable person would assume it was excluded. The inspector held that this missed the point; not many reasonable people would have even heard of the Use Classes Order, never mind understood its application. A reasonable person, he decided, would simply understand the condition to be controlling food sales.

The inspector concluded that the condition could only be read so as to preclude the operation of the Use Classes Order as far as the sale of food was concerned, within the terms set out in the condition.

The following DCP section is relevant: 4.4261 and 13.14   

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