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Latin is a language….

“Latin is a language, dead as dead can be,

First it killed the Romans, and now it’s killing me.”

Despite the claims of this little rhyme, found scrawled in many a Latin textbook, Latin lives on in modern English, as we all know. Bear in mind that the Latin for maidservant is ‘ancilla’ when reading the following and it will help you to remember the distinction between ‘ancillary’ and ‘incidental’, made by the second inspector.

A couple of years back we reported an appeal case (DCS Number 400-016-993) in which the inspector opined that “The terms ‘incidental’ and ‘ancillary’ have, in general, become interchangeable in their meaning. Both terms refer to a use or activity that would not be expected to be found as an integral part of a use.”

In a more recent case seeking retrospective permission for a cabin at a farmhouse in the Berkshire green belt (DCS Number 400-023-239), however, the inspector was of the opinion that “Ancillary, accorded its ordinary meaning of providing support to, has developed a specific planning meaning in counterpoint to incidental.” Clearly with the case before him in mind, and noting the judgment handed down in Rambridge v Secretary of State for the Environment and East Hertfordshire District Council [1997], he explained that “The commonly held distinction is that the former may incorporate some elements normally integral to a dwelling, such as bedrooms, whereas that would not be permissible in respect of the latter (which is more indicative of a secondary or subordinate use).” He recognised, however, that the distinction between ‘incidental’ and ‘ancillary’ is not clear-cut. He further explained that it might also turn on the internal layout of a building, subtle changes in how a space is used in practice, and the former might legitimately become the latter in time without amounting to an independent use. Consequently, he judged, a condition requiring that an ancillary use cease after three years and give way to an incidental use (to suit the plans of the appellant) would be unenforceable.

The following DCP section is relevant: 4.323.

Deeds, not words

A statue of Emmeline Pankhurst in Parliament Square near to the Houses of Parliament has been rejected at appeal, the inspector finding no exceptionally good reason to locate the statue in an area identified in a supplementary planning document as a monument saturation zone (DCS Number 400-023-176).

The inspector noted that there was already a smaller statue of Emmeline Pankhurst in the vicinity and a statue of Millicent Fawcett in Parliament Square. He reasoned, accordingly, “that the suffragette movement and the suffragist movement are both commemorated, and the suffrage cause is therefore twice commemorated, by statues close to the Houses of Parliament.” He acknowledged that Emmeline Pankhurst is certainly an important figure in the nation’s history, accepting that the existing statue might not properly reflect her importance, but held that there was no justification for her to be commemorated again in the vicinity of Parliament by the erection of the proposed statue. Furthermore, he continued,  “locations for commemorative statues are a finite resource in Parliament Square and allowing the appeal would deny the opportunity for commemorating a worthy person, who is not already commemorated, in the future.”

With the greatest respect to the senior inspector who determined this appeal, it occurs to the DCP Blog that he might have stepped outside his remit in taking the identity of the person represented by the statue into his reckoning. The effect on the street scene? Definitely. The scale, design and materials of the plinth and statue? Certainly. But the identity of the person? Hmm.

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

A matter of form

Not so long ago we reported an appeal case in which an inspector ruled that a restaurant was a community facility (High on the hog). In that case (DCS Number 400-022-010) the inspector decided that the loss of the restaurant to residential use “…would have a harmful impact on the ability of the community to meet its day to day needs.”

In a more recent case, however, an inspector has ruled that a restaurant is not a community facility (DCS Number 400-023-094). In this case the inspector allowed the residential conversion of a restaurant, finding that it would not harm the provision of community facilities. The council compared the restaurant to a public house, in that it provided a social space with eating and drinking facilities to serve the community. The inspector recognised that certain uses and venues are important for local communities to meet, socialise and interact. He considered, however, that although restaurants provide opportunities to meet and socialise, they do not fulfil this function as a public house might, as they tend to be arranged in a formal manner. Restaurants also do not provide access to services or facilities required for day-to-day living, he declared.

Section 4.1444 of DCP Online concerns the loss of community uses.

The direction of travel

A recent appeal against the refusal of planning permission for eight houses in rural Kent (DCS Number 400-022-777) has allowed us a glimpse of the future, the day when, just maybe, our travel habits are not polluting the atmosphere with noxious gases. Whilst the inspector dismissed the appeal, it is interesting to note the direction of travel.

The inspector reasoned that vehicle trips into the village from the appeal site would be short in duration. He considered, however, that they would occur frequently due to the absence of safe alternative means of travel. As such, he found that the vehicle trips associated with eight households would soon add up, with the associated carbon emissions.

The inspector acknowledged that the impact would diminish as combustion engines are phased out and replaced by ultra-low emission and electric vehicles. Nevertheless, he anticipated that the houses, if approved, were likely to be constructed in the short term and considered that it was unlikely that the majority of future occupants would use these vehicles. Accordingly, this could not be relied upon as a means of mitigating the inaccessible location of the site in the short to medium term, he determined. Nonetheless, this represents an encouraging view of our travel habits in the long term.

In an interesting twist, the inspector considered that regardless of what vehicle was used by future occupants, the challenging accessibility of the site to services and facilities would not promote the social and health benefits conducive to safe and convenient opportunities for walking and cycling.

Section 4.1114 of DCP Online concerns sustainability policies in development control practice.

About the size of it

From time to time there is debate about the size of a planning unit so we thought it might be useful to report a recent appeal case in which the subject was addressed (DCS Number 400-022-610). In this case the inspector ruled that an enforcement notice which required the cessation of motocross activities at a former quarry in south Yorkshire was not defective, despite the appellant’s claim that the planning unit was not identified correctly.

The appellant argued that the notice was invalid because: the red line on the enforcement notice plan showed a vast area of land; there was no specific reference to exactly where the alleged motocross activities were taking place, and; the red line covered areas where no breach had ever taken place. In addressing this point the inspector set out the law on the planning unit comprehensively so we have set out his text in full:

“The Courts use the concept of the planning unit to determine the area of land to be considered when identifying the primary use of land, (and its ancillary uses), and whether any material change of use has occurred. In the case of William Newland v SSCLG and Waverley BC QBD 22 December 2008, HHJ Hickinbottom said the identification of the relevant planning unit was quintessentially a matter of fact and degree for the primary decision maker, (also see Johnstone v Secretary of State for the Environment (1974) 28 P&CR 424 and Church Commissioners for England v Secretary of State for the Environment [1995] 2 PLR 99).

In the case of Burdle v SSE [1972] 1 WLR 1207, Bridge J. determined that there were three criteria to determine the planning unit:

  1. When occupier uses for single main purpose to which secondary activities are incidental, the unit of occupation to be taken as the planning unit.
  2. When a variety of activities none incidental or ancillary to the other, again consider the entire unit.
  3. When two or more areas occupied for substantially different purposes. Each area so used is a separate planning unit.

Bridge J. said: “It may be a useful working rule to assume that the unit of occupation is the appropriate planning unit, unless and until some smaller unit can be recognised as the site of activities which amount in substance to a separate use both physically and functionally.”

In the case of Thomas David (Porthcawl) Ltd and others v Penybont Rural District Council and others [1972] 3 All ER 1092 5 Oct 1972, the Appellants had complained that an enforcement notice had been served on an entire plot of land when the activities complained of, sand and gravel extraction, had occurred on only two smaller parts. There it was held that the site should be looked at as a whole.”

The inspector found it clear from these decisions that, where there is no evident demarcation between activities or works, the unit of occupation is generally to be taken as the planning unit, even where there may be a nil use on part of the land. Particularly where access roads and paths are shared and there is some flexibility in the location of activities, he reasoned, there cannot be a sensible separation of the site into different planning units. In his view, it was entirely appropriate for the council to have identified the entire enforcement notice red line site as the planning unit where a mixture of activities and engineering operations were taking place.

The inspector concluded that the notice appropriately identified the planning unit and correctly described the mixture of uses. It was a valid notice, he ruled.

So that’s about the size of it.

Section 4.324 of DCP Online concerns the planning unit concept.

Ignorance of the law

Since when has it been the appellant’s responsibility to educate a planning inspector about planning law?!

In Open all hours? we reported an appeal case in which the inspector cited the relevant planning legislation concerning electronic communications (DCS Number 400-016-112). He recorded that “Paragraph 2(7) of Schedule 1 to the Town and Country Planning  (Electronic Communications) (England) Order 2003 and Article 2(9) of the GPDO are clear”….”that communications received outside of normal business hours shall be taken to have been received the next working day. Furthermore, section 336(4A) of the 1990 Act indicates that an electronic communication, used for the purposes of giving a notice, shall be taken to have been received the following day if received outside of that person’s business hours.”

In another appeal case relating to the approval of details pursuant to conditions attached to permission for a new access in Sussex, however, the inspector ruled differently (DCS Number 400-022-889). “The Council’s decision to refuse to grant approval of the details submitted pursuant to conditions 6 and 7 was issued by email communication on 12 March 2019 at 2235” the inspector recorded. “The appellant claims that” she continued “as this electronic communication was received outside the recipient’s business hours, it should be considered to have been received on the next working day, that is when deemed discharge would take effect. As a result, this would mean that the Local Planning Authority’s consent, agreement or approval of the submitted details to any matter as required by the conditions would be deemed to have been given, and the Council would be unable to take enforcement action or stop development on site on the basis that the conditions had not been complied with.” On this point the inspector noted “The appellant submits no legal authority to support his claim that the Council’s decision must be received within the recipient’s business hours. Nor is there any legislative provision that I have been made aware of.” She concluded “In the absence of clear and precise evidence demonstrating otherwise, I consider that the Council’s decision was appropriately issued within the prescribed period, before the DDN came into effect.”

Ignorance of the law is no excuse.

The relevant legislation can be found in the Policy and Legislation section of DCP Online.

A change of gear

A pizza outlet in west London which is prohibited from delivering takeaways by motor vehicle has overcome the constraint by means of some imaginative thinking (DCS Number 400-022-916).

The appeal inspector noted that the condition in dispute did not prevent deliveries from taking place from the premises but restricted the use of motor vehicles which were defined to include motorcycles, mopeds and motor scooters. The appellants sought to use electrically assisted pedal cycles.

The inspector emphasised that the appeal was not a formal determination as to whether or not EAPCs are a form of motorised vehicle. However, she had regard to the evidence presented by the appellants regarding the requirements under the Department for Transport Information Sheet: Electrically Assisted Pedal Cycles (EAPCs) in Great Britain, Revised November 2015. The appellants confirmed that the proposed EAPCs to be used would fully comply with the stipulations set out in the Information Sheet.

Given the number of cycle stands in the vicinity of the site, the inspector did not agree with the council’s contention that the vehicles would be likely to park on the public highway. The street was busy and heavily trafficked, she observed, but found no evidence to suggest that the form of transport proposed, including the likely number of EAPCs operating at any one time, would prejudice the free flow of traffic and public safety. There was also no evidence, she held, as to why this form of transport would be unacceptable compared with other non-motorised forms of vehicles, such as pedal cycles, which were not prohibited under the terms of the existing condition.

The inspector varied the condition to allow for deliveries by EAPCs, being satisfied that it would not prejudice the free flow of traffic and public safety.

Section 16.244 of DCP Online concerns restrictions on deliveries from takeaway premises.

Boomerang children

Economic and social changes have meant that these days children very often grow up, leave the family home to lead independent lives….and then come back again.

An interesting appeal case concerning an agricultural occupancy condition on a dwelling in Yorkshire sought to exploit this phenomenon (DCS Number 400-022-725). The condition stated that the occupation of the dwelling was limited to a person solely or mainly employed in agriculture in the locality, including any dependants, or a widow or widower of such a person. The appellants sought a certificate of lawfulness on the basis that the dwelling had been occupied in breach of the condition by a financially independent child for over ten years.

The inspector decided that the appeal turned on the meaning of the word “dependant”. He recorded that after the death of the farmer the house had been occupied by his widow and two young daughters. Moving on in time, the daughters had become financially independent and moved away. However, the eldest daughter returned to live at the farmhouse in 2005. The appellants’ case was that on returning to live at the property, her employment status and age meant that the eldest daughter was no longer dependent on her mother in terms of financial and emotional care and support. Accordingly, they argued, from this time the eldest daughter was in breach of the restrictive condition as she no longer met the definition of a ‘dependant’.

The inspector recorded that in the Court of Appeal the case of Shortt & Shortt v SSCLG & Tewkesbury BC [2015] explored the meaning of the term ‘dependant’. The court found that as a matter of ordinary language, “dependants” is capable of referring to relationships involving emotional support without financial dependency. The inspector was not persuaded that a financially dependent adult can be considered as having broken all ties of dependency on a parent. Indeed, he found in the case before him that the change in personal circumstances of the eldest daughter suited a return to live at the farmhouse. It seemed reasonable to him to interpret this as part and parcel of the emotional support that would naturally have been provided to her in a family setting. Accordingly, the daughters would not lose the status of dependants, and would continue to be able to occupy the farmhouse without breaching the subject planning condition.

The inspector concluded that a ‘dependant’ is not limited to describing a child depending on an adult but may also be identified by the interdependency between adults. The council’s decision was well-founded and the appeal must fail, he determined.

Section 9.341 of DCP Online concerns the standard agricultural occupancy condition.

Reinventing the wheel

In most cases, a council which fails to provide a statement at appeal is not doing itself any favours. Conclusions about the strength of the council’s case and/or commitment to the decision may well be drawn. That said, there really isn’t any point in reinventing the wheel, and requiring an inspector to read much the same information twice, if a comprehensive committee report already exists.

Indeed, an inspector dealing with an appeal against outline permission for five dwellings in Gloucestershire (DCS Number 400-022-637) refused to award costs against the council, recognising that “The Council are not bound to submit an appeal statement and were satisfied that the Officer report presented their case sufficiently.” He noted that “The officer report and decision notice gave reasons for the refusal of the application and identified where the Council considered the proposal was contrary to local and national policy.”

The inspector determined that the council’s refusal reasons were adequately substantiated. He concluded that the council had not acted unreasonably and, as such, there could be no question that the appellant had been put to unnecessary or wasted expense.

Section 6.131 of DCP Online concerns the alleged failure to substantiate reasons for refusal with regard to claims for costs.

Inherent and intrinsic

Making sense of the various permitted development rights for change of use under Part 3, Schedule 2 of the GPDO is a long way from easy. In particular, many have drawn the conclusion that a local planning authority which fails to determine a prior approval application within the requisite period has granted permission by default. Not so, as we highlighted in No worries

In dealing with an appeal concerning a residential barn conversion in south Yorkshire under Class Q (DCS Number 400-022-642) an inspector has confirmed that the decision in Keenan v Woking BC and SSCLG [2017] makes it clear that if an application for prior approval is submitted for works that do not fall within the scope of permitted development, and the council fails to issue a decision within the specified period, the works do not become permitted development.   

Helpfully, the inspector has set out the judge’s reasoning verbatim: “The sole and limited function of this provision, (the need for prior approval), was to enable the LPA to determine whether its own “prior approval” would be required for those specified details of that “permitted development”. If the authority were to decide that its “prior approval” was not required, the condition would effectively have been discharged and the developer could proceed with the “permitted development” – though not, of course, with any development that was not “permitted development”. If, however, the authority failed to make a determination within the 28-day period, again the developer could proceed with the “permitted development”, but again not with any development that was not “permitted development”. The developer would not at any stage have planning permission for development that was not, in fact, “permitted development”. “

As we understand it, then, a proposed development must have the required characteristics of permitted development under Part 3, inherently and intrinsically. Otherwise, it’s a non-starter. 

Section 4.3423 of DCP Online sets out Part 3 permitted development rights.