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Trigger’s broom or the Ship of Theseus paradox

Fans of ‘Only Fools and Horses’ might remember the sketch when Trigger, the road sweeper, claims to have used the same broom for 20 years….even though it has had 17 new heads and 14 new handles. Also known as the Ship of Theseus paradox – Plutarch asked whether a wooden ship which has had every single piece of wood replaced was still the same ship – this is a question which has perplexed thinkers over the centuries and was before a planning inspector in a recent appeal (DCS Number 400-032-464).

The appeal concerned the refusal of prior approval for residential conversion of a barn under Class Q of the GPDO. The main issue was whether the building was in situ on 20 March 2013 (the relevant date). The appellant asserted that “the original structure of the building exists and it is felt that the building is still classed as original.” 

The inspector, however, remarked that whilst it is not unusual for agricultural buildings to be repaired over time the works that had been undertaken were recent and very extensive. He found that in all likelihood the concrete block walls, roof and steel frame had all been constructed within the previous few years. Other than the corrugated metal sheeting on the walls, which he considered might have been on the original building, he observed that the building appeared to be a different one from that shown in the submitted aerial photographs dating from 1979, 1983 and “1985 onwards”. Furthermore, the roof pitch of the building appeared steeper than the roof pitch of the original building, he noted, and its footprint appeared to be slightly smaller than the footprint of the building shown in the photographs. He concurred with the council’s assessment that the building that existed on the site was not the original building. 

The inspector determined that there was insufficient information to demonstrate that the relevant GPDO conditions, limitations and restrictions had been met and concluded that the proposal did not comprise permitted development. The appeal was dismissed.

Further information on Class Q can be found at section 10.114 of DCP Online.

Off the peg

An inspector has refused the redevelopment of a house in a suburban village in Surrey with two dwellings (DCS Number 400-032-382), on the grounds that the site required an individualistic approach.

The inspector judged that two dwellings of an appropriate size and design had the potential to be accommodated without causing harm to the character and appearance of the area. Nevertheless, he found that the mirror image design, in a locality characterised by a predominance of individuality of dwelling siting and appearance, was a major drawback of the appeal proposal. While he found the proposed design in itself acceptable he considered that its replication in handed form for both dwellings would be too akin to a formulaic approach to design and house type as adopted by volume builders. This concept, he remarked, was frequently used in estate development, albeit in the case before him it would be with upmarket buildings. However, he considered that the handed pair would draw the eye and be perceived as harmfully inappropriate in a locality, which even outside the nearby Residential Area of Special Character, had the difference in the design and appearance of each dwelling as one of its major character assets.

The inspector determined that the proposal, due to its homogeneity in design, would be in conflict with the development plan, the council’s Local Distinctiveness Guide and the NPPF.

The scope of design control is covered at section 4.132 of DCP Online.

Open textured

An inspector has deleted a condition specifying that the demolition of a locomotive shed and its replacement with two houses in Cheshire should be carried out in total accordance with the drawings, finding no harm to the openness of the green belt through a proposed increase in height of the garages (DCS Number 400-032-263).

The inspector recorded that openness is capable of having both spatial and visual aspects. He then gave regard to various High Court judgments: Euro Garages Ltd v SSCLG & Anor [2018]; Samuel Smith Old Brewery (Tadcaster), Oxton Farm v North Yorkshire CC & Darrington Quarries Ltd [2018]; and Samuel Smith Old Brewery (Tadcaster) and others) (Respondents) v North Yorkshire County Council [2020]. He explained that, in summary, these judgments highlight that, rather than treating any change as having a greater impact on the openness of the green belt, the correct approach is to consider the impact or harm, if any, wrought by the change. Whether or not any change will have an adverse impact, he continued, and so cause harm to openness, might depend on factors such as the scale of the development, its locational context, and its spatial and/or visual implications. The word openness is open textured and a number of factors are capable of being relevant when it comes to applying it to the particular facts of a specific case but how to take account of the visual effects is a matter of planning judgement rather than one of legal principle.

Turning to the case before him, the inspector noted that although the proposal did not increase the footprint of the garages, it would result in them having a greater volume than the approved garages due to the increase in height. However, the increase in height and volume would not be substantial. Furthermore, the increased height of the garages would not be conspicuous from the lane as a result of the existing built development within the surrounding area, siting of the new dwellings, new planting, existing vegetation, setback from the highway and, that the garages would appear modest compared to the size of the dwellings. 

Given the scale of the proposal and the context of the site, the inspector determined that the scheme would not have a detrimental effect or have a materially greater impact on the openness of the green belt than that approved. As such, the proposal would not conflict with the fundamental aim of green belt policy to keep land permanently open. He concluded that the development would therefore preserve the openness of the green belt and would not conflict with the purposes of including land within it. 

This topic has also been covered in an earlier blog post Shape shifting and further information on green belt policy can be found in section 4.251 of DCP Online. 

A working solution

In a recent blog post – Which way is up? – we highlighted contrasting opinions from planning inspectors about how the GPDO, in respect of Part 1 Class AA upward extensions, ought to be interpreted. The question is should it be only the effect on the building itself under consideration or can the effect on the street scene also be taken into account? 

Another appeal decision (DCS Number 400-032-241) might represent a working solution for reconciling these differing interpretations of the GPDO. This appeal concerned a proposal, again under Part 1 Class AA, for an additional storey on a house in southwest London. In this case the inspector noted that the proposed materials and roof cover would correspond with the host dwelling. The fenestration pattern would also align with the existing fenestration. However, she found that whilst overall the architectural detailing would match that of the existing dwelling, the additional storey would significantly add to the height of the building. She observed that the resultant eaves and roofline would project obtrusively above that of the neighbouring houses. 

Now here is the clever bit. The inspector reasoned that [our emphasis] ‘By adding an extra floor above, the development as proposed would fundamentally alter the architectural composition of the property within this street context and consequently would have a harmful effect on the external appearance of the dwellinghouse as a result of its inconsistency with the remainder of the terrace.’

The permitted development classes are set out at section 4.342 of DCP Online.

Fallback argument stands up

An inspector has allowed the replacement of a barn in Wiltshire with a single dwelling after giving weight to the fallback of a prior approval for conversion (DCS Number 400-032-239). In doing so he set out case law on fallback. 

The appellants’ submissions highlighted construction methodology issues with the approved scheme, the inspector noted. Nevertheless, and contrary to the council’s claim, he found no substantive evidence that demonstrated insurmountable economic or other problems existed that would prevent the approved works from taking place. Indeed, he noted, correspondence indicated that a new dwelling would be provided regardless of the outcome of the appeal. As such, he found a greater than theoretical possibility that the conversion would be carried out even if the appeal were dismissed. Therefore, the approved scheme represented a fallback position.

Allowing the appeal, the inspector judged that the effects of the development would be almost identical to the approved scheme. As there was a real prospect that it would be implemented, he concluded that the fallback position attracted significant weight which outweighed that attributed to the harm from the site’s unsustainable location. 

In determining the appellants’ application for costs the inspector found, contrary to their submissions, that the fallback position had been treated by the council as a material consideration in its assessment.

The inspector recorded that case law on the matter (for example Gambone v Secretary of State for Communities and Local Government [2014]) has established that once the fallback position has been determined as a material consideration, the question for the decision-maker is the weight to be attached to it. Court judgments, he continued, have not dictated the level of weight that should be attached to such matters in the assessment of planning applications. As such, he ruled that the council was entitled to form its view that the fallback position attracted little if any weight, although he had arrived at a different conclusion.

Section 4.148 of DCP Online covers fallback. 

A significant departure

An inspector dealing with an appeal against a condition attached to the planning permission for a replacement dwelling in Staffordshire (DCS Number 400-031-583) has drawn attention to a significant change in the NPPF.

The inspector related that the disputed condition removed certain permitted development rights from the proposed dwelling, including for all extensions and alterations above ground floor level or above four metres in height. The reason given for the condition was to comply with development plan policies for the erection of replacement dwellings and to safeguard the character and appearance of the locality.

The site had been subject to a previous appeal that also concerned a replacement dwelling. That scheme, the inspector recounted, was found to be far more obtrusive in the landscape than either the existing dwelling or a separate scheme which had planning permission. Accordingly, the appeal had been dismissed, in part due to a conflict with local plan policy which stated that a replacement dwelling in the countryside would only be approved where the proposal was not significantly larger or more intrusive in the landscape than the dwelling it replaced. In coming to that view, the previous inspector did not accept the argument that the proposed dwelling would be similar in scale to the fallback position established by the extant permission plus permitted development rights. In this regard, it was reasoned that the proposed dwelling would also benefit from permitted development rights, and it would not be reasonable to remove these by way of a planning condition because Planning Practice Guidance stated that “conditions restricting the future use of permitted development rights or changes of use will rarely pass the test of necessity and should only be used in exceptional circumstances”.

The present inspector noted, however, that that guidance has now been superseded and no longer forms part of PPG. Instead, the most recent version of PPG states that “conditions restricting the future use of permitted development rights or changes of use may not pass the test of reasonableness or necessity. The scope of such conditions needs to be precisely defined, by reference to the relevant provisions in the Town and Country Planning (General Permitted Development) (England) Order 2015, so that it is clear exactly which rights have been limited or withdrawn”. He held that this represents a significant departure from the guidance considered by the previous inspector. In particular, there is no longer a requirement to demonstrate “exceptional circumstances” in imposing such a condition.

The inspector found that the disputed condition allowed for greater control to be applied to the size and bulk of the replacement dwelling. This was necessary to ensure that the proposal did not become more obtrusive in the landscape than either the existing or approved dwelling. Were it to be removed, he reasoned, the proposed dwelling could be significantly extended so that it would be comparable in scale to the scheme rejected by the previous inspector. 

The current appeal inspector determined that the disputed condition was precisely defined, and was clearly necessary in order to ensure that the proposal complied with development plan policy. Dismissing the appeal, he concluded that the condition was both reasonable and necessary in order to preserve the character and appearance of the area.

The tests for conditions are given at section 6.1372 of DCP Online.

Pitch perfect

In determining an appeal against the refusal of prior approval for the addition of a first floor to a bungalow in Lancashire (DCS Number 400-032-082) an inspector has agreed with the appellant’s interpretation of ‘roof pitch’.

Schedule 2, Part 1, Class AA of the GPDO, the inspector recorded, permits the enlargement of a one-storey dwellinghouse consisting of the construction of one additional storey immediately above the topmost storey of the dwellinghouse, subject to limitations and conditions. The main issue, she found, related to the roof pitch.

Condition AA.2(2)(c), the inspector noted, states that the roof pitch of the principal part of the dwellinghouse following the development must be the same as the roof pitch of the existing dwellinghouse. The appellant stated that the roof pitch of the principal part of the proposed extended dwellinghouse would be the same as the roof pitch of the existing dwellinghouse. Nevertheless, the council was concerned that parts of the existing roof pitch were different from that proposed. The introduction of conventional dual-pitched roofs, the council argued, would introduce an entirely different roof form, with the roof planes at various points sloping in different directions from those currently existing, and ridges introduced where they did not currently exist.

The inspector pointed out, however, that the GPDO wording suggests a relatively narrow assessment as to the roof. The wording of condition AA.2(2)(c) refers specifically to the roof pitch. It does not, she noted, state that the roof must be of the same design, form, profile or direction as the existing roof pitch. Accordingly, she determined that following the development, the pitch of the roof would be the same as the roof pitch of the principal part of the existing dwellinghouse.

Part AA.2(3)(a), the inspector continued, requires the developer, before beginning the development, to apply to the local planning authority for prior approval for matters which include (ii) the external appearance of the dwellinghouse, including the design and architectural features. She decided that although the proposal would result in a differently designed roof, and therefore the external appearance of the dwellinghouse would alter, the scheme would result in a more coherent roof design. Overall, taking into account the design and architectural features of the principal and side elevations, she considered that the proposal would be acceptable in terms of external appearance. 

The inspector decided that the proposal would comply with the conditions, limitations and restrictions specified in the GPDO and that prior approval should be granted.

The permitted development classes are set out at section 4.342 of DCP Online.

Poor condition

The types of conditions which can be attached to a listed building consent are set out at section 17 of the Planning (Listed Buildings and Conservation Areas) Act 1990. As the local planning authority in Bath found out recently at appeal they do not include ‘plans conditions’ (DCS Number 400-031-581).

The application had sought to vary a plans condition of a listed building consent, the inspector recorded. He pointed out, however, that with reference to Section 17 there is no mechanism by which the council could have imposed the original condition. He determined that the condition was therefore invalid and, as a result, concluded that he had no alternative other than to dismiss the appeal on procedural grounds. 

Section 27.14 of DCP Online relates to conditions on listed building consents. 

Skin deep

A recent appeal decision in Bucks (DCS Number 400-031-518) tells us that you can’t reclad the frame of a building if the frame isn’t there, despite the appellant’s contention to the contrary.

In this case, the inspector recorded, a derelict barn comprising essentially of a bare concrete frame had previously stood on the appeal site. Planning permission was sought for the recladding and reroofing of the then existing frame but the council treated that proposal as for a new agricultural building, rather than for recladding, and refused permission. However, permission was subsequently granted on appeal for ‘recladding and reroofing’ of the then existing frame, with that inspector treating the proposal at ‘face value’ as for recladding, rather than for a new building.

Works commenced on site seeking to implement the permission granted at appeal, with brickwork and blockwork walls built. During the construction process, however, it became apparent that the concrete frame had become unstable. This was therefore removed on the basis of health and safety advice received. Concerns were raised that the structure on site was not being built in accordance with the permission, and a temporary stop notice was served followed by an enforcement notice.

The council referred to the case of Williams v SSCLG & Chiltern DC in support of the proposition that, as the planning permission only authorised recladding of a then existing frame, the removal of that frame meant that development on site could not be authorised by that permission. The appellant, in contrast, relied upon the case of Basildon DC v SSE & Asplin. This was in support of the argument that, as the frame would not have been externally visible in the permitted building, the removal of that frame, in the absence of a condition requiring its retention, should not take the works outside of the permission. 

The inspector reasoned that, whilst it was unfortunate that the frame was found to be unsafe, it did not alter the fact that the permission was for the recladding of that frame and not for a new building. To her mind, the term ‘cladding’ meant an external covering or skin applied to a pre-existing structure. She found that removal of that pre-existing structure had the effect that the works undertaken did not constitute recladding but instead resulted in a new building. To find otherwise, she reasoned, would be to undermine the certainty of the clear wording of the permission which third parties relied upon. She agreed with the reasoning in Williams that apparent meaning of a permission (i.e. ‘recladding’) should not be altered by reference to what was not in the planning permission (i.e. a condition requiring the frame to be retained). In any event, she noted, in Asplin, it was commented that the framework of the building which was removed would not have contributed to the structural strength of the building, which contrasted with the case before her where permission was granted for recladding. 

The enforcement notice was upheld.

There are further cases relating to whether rebuilding/reconstruction requires permission at section 4.3116 of DCP Online. 

In too deep

Readers might recall when last year a statue of Edward Colston, the Bristol slave trader, was knocked off its plinth by protesters, rolled down to the harbour and dropped in the river. There Edward might have stayed but, given that the statue formed part of a listed structure, the city council hauled him back out. Subsequently, a replacement statue representing one of the protesters making a Black Power salute was placed on the plinth. This was immediately taken down, the council pointing out that there is a requirement to adhere to the proper procedures. Following non-determination of applications for planning permission and listed building consent, however, the applicants went to appeal (DCS Number 200-010-271).

Both appeals have recently been dismissed, a particular concern of the inspector being that it would make no sense to place a statue of Jen Reid, a female black protester, on a plinth which bears an inscription and scenes relating to the life of Edward Colston. Hmm.

We have raised this question before (in Deeds, not words), in relation to a proposed statue of Emmeline Pankhurst next to the Palace of Westminster, but is it really the role of the planning inspector to consider the identity of the person commemorated by a statue?  Shouldn’t we, as planners, confine ourselves to consideration of matters such as impact on street scene, scale, design quality, materials? Otherwise, all sorts of debate ensues. For example, whilst the inspector might have had a point with regard to the historic integrity of the monument, isn’t that overlooking its significant recent history? And, must public art only document, record and inform? Is it not sometimes the purpose of art to disturb, to raise questions, to challenge perceptions? Indeed, the discord between plinth and statue which disturbed the inspector might be seen as the perfect metaphor for the discord which exists in society and resulted in Edward Colston being tipped into the drink in the first place. 

Let’s not get out of our depth.

Further appeal examples relating to public art can be found at section 17.437 of DCP Online.