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Altitude sickness

Readers will be aware that inspectors have come to differing conclusions about whether the effect on the street scene ought to be taken into consideration when dealing with prior approval applications for upward extensions. At risk of irritating those who are already thoroughly sick of the muddle that has been engendered by the unclear wording of the GPDO on such extensions, we thought we should report a recent appeal case (DCS Number 400-034-028) in which the inspector was faced with the question as to whether the historic environment should be taken into account. 

This case concerned an appeal against the refusal of prior approval under Schedule 2, Part 20, Class AA of the GPDO for the construction of two additional storeys on an existing building in the north-east to form four flats. 

The appellant argued that there is no protection extended to the setting of designated heritage assets in paragraph AA.2(1). The inspector considered, however, that she was obliged to have regard to the NPPF in so far as relevant to the subject matter of the prior approval. In the case before her she found that the context of the building clearly derived some of its qualities from the historic environment which included nearby listed buildings. She noted that the appellant questioned the council’s use of the term ‘visual amenity’ in relation to the heritage assets but, regardless of the terminology used, she was satisfied that it was correct to consider the effect on the historic environment, in line with NPPF policies. 

The inspector noted that a number of decisions which had been drawn to her attention took a different approach from her own in terms of the character and appearance of the wider environment. She determined, however, that she was bound to assess the proposal on her own reading of the case and the relevant legislation and policies. She concluded with ‘The fact that others may have taken an alternative approach has not led me to a different conclusion on the appeal before me.’

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

On a straightforward reading

Part 20, Class A of the GPDO allows for flat block additions provided that the building was not constructed after 5 March 2018. In deciding an appeal in Reading, however, (DCS Number 400-034-008), an inspector noted that there is no definition within the GPDO of what stage a building needs to be at before it can be considered to be constructed. 

The appeal before the inspector was against the refusal of prior approval for the addition of two storeys to an existing detached block of flats to provide six additional flats. 

The appellant suggested, the inspector recorded, that comparisons could be made with the term ‘substantially completed’ that is used in Section 171B of the Act in the context of planning enforcement. The inspector held, however, that there is a difference between ‘was constructed’ and ‘substantially completed’. He considered that ‘substantially completed’ implies that most of the work has been carried out but construction work is still underway, whereas an ordinary reading of the phrase ‘was constructed’ relates to something that has already taken place.

After considering the evidence and in light of a straightforward reading of the phrase ‘was constructed’, the inspector determined that the building was still under construction after 5 March 2018. He therefore concluded that the proposal would not be permitted development. 

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

Great minds think alike about caravans

Last October we reported an appeal case in Norfolk in which the inspector found that touring caravans could be differentiated from static caravans in planning terms, notwithstanding that they fall within the same legal definition (The same but different). This differentiation has now been endorsed in the High Court, as related by an inspector charged with determining a similar appeal in Dorset (DCS Number 200-010-581).

In St Anne’s Court Dorset Ltd v SSHCLG & Dorset Council [2021], the second inspector recorded, it was held that, where a planning permission had been issued for the use of a site for touring caravans, the question of whether use for the stationing of caravans for the purposes of human habitation would constitute a material change of use from the permitted use was a matter of fact and degree. The judge clearly stated, he noted, that “touring caravans” is a functional limitation. 

In considering the appeal before him, against the refusal of a certificate of lawfulness for use as a site for seven static caravans for occupation for holiday accommodation on land authorised for the stationing of five touring caravans, the inspector reasoned that the term “touring” must relate to more than just a caravan’s physical construction. He considered that the way in which touring caravans generally function on site is different from static units. In his experience, the activity around touring caravans was likely to be ephemeral, with awnings and other paraphernalia temporarily used when people are occupying them whilst on holiday. Static units, he said, can lead to more domestic settings. Significantly, though, he pointed out that touring units are generally towed away when the holidaymakers go home whereas static units and any peripheral impacts are more permanent. The inspector also found the size and appearance of the basic types of caravans relevant to consider. He noted that there is a variety to the size of touring caravans and they also come in a variety of specifications, enabling comfortable living conditions including, potentially, use outside of the traditional holiday seasons. However, generally speaking, he said, as well as being transitory, they tend to be smaller than static units, reflecting the need to tow them. Static units, on the other hand, need to be brought onto site by large vehicles and their lack of mobility and semi-permanent connection to services means that they are simply less easy to move around.

Applying these principles to the appeal before him, the inspector judged that the positioning of seven static caravans on site rather than the five touring caravans was a change in the way that the site would function and how it would appear, even if the static units were occupied on the same holiday basis. 

The inspector concluded that the proposal would therefore result in definable changes to the site. These would most clearly relate to the additional visual effects but would also have potential impacts upon sensitive ecological environments. As a matter of fact and degree, he determined that the proposal would involve a material change of use of the land. Accordingly, a certificate of lawfulness was denied. 

Section 24 of DCP Online covers caravans and chalets.

The minimum of formalities

An inspector has emphasised (DCS Number 400-033-827) that the prior approval process should be attended by the minimum of formalities.

The inspector allowed the appeal, against the refusal of prior approval for the conversion of a barn in Sussex to a Class D2 use under Part 3 Class R of the GPDO, finding that permission was deemed to be granted after the council had failed to determine the application within the requisite period.

The inspector related that the appellant had submitted his application to the council by email dated 6 September 2020, and paid the requisite fee the following day. The council claimed, however, that the appellant had not provided a plan appropriately identifying the site until 28 September 2020 because the plans submitted prior to that date did not include road names, nearby properties or a grid reference. In arguing its case the council referred to advice in the Planning Practice Guidance which states that a location plan should include various details to ensure the exact location of the site is clear. However, that advice, the inspector held, goes beyond what Paragraph W(2) of Part 3 requires to be submitted as part of an application for prior approval. 

Both main parties referred to Murrell v SSCLG [2010] where it was held that the prior approval procedure is attended by the minimum of formalities and that where a valid application is submitted the statutory period for the consideration of the application is not paused or restarted if the council seeks further information or if the applicant submits a new application form or further plans. The inspector was satisfied that the plans submitted on 6 September 2020 indicated the site and showed the proposed development. The exact location of the site was clear from the plans submitted on that date. The appellant submitted the necessary details required by Paragraph W(2) on 6 September 2020 and the requisite fee was paid on 7 September 2020 within the council’s normal working hours, which completed the application process. 

The 56-day period that the council had to notify the appellant that prior approval was required therefore commenced on 8 September 2020, the inspector determined, and prior approval was deemed to be granted on 3 November 2020. An additional application form and additional plans submitted by the appellant between 7 and 28 September 2020 did not affect this, nor did the council’s decision notice dated 23 November 2020.

The costs of the appeal proceedings were awarded against the council, the inspector finding that it had left the applicant with few options to confirm prior approval was deemed to have been granted.

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

No second chances

An inspector has issued a certificate of lawfulness for airport parking in west Sussex in a decision which demonstrates that, in planning enforcement, there is rarely a second chance to get things right (DCS Number 400-033-913).

In this case an enforcement notice had been served in 2002. The breach of planning control alleged was ‘the use of land hatched black for airport related parking without planning permission.’ There was a single requirement, namely ‘within 28 days of the date on which this notice takes effect: Remove all airport related vehicles from the land.’ It was common ground that all airport-related vehicles had been removed as required.

The inspector reasoned that the determination of the appeal turned on the interpretation of the notice. Put at its simplest, he said, the question was whether the requirement of the notice set out a step which was required to be carried out once only (the appellant’s position) or whether it imposed a continuing obligation to comply with the notice in perpetuity (the council’s position). 

The inspector took the view that interpretation was quite straightforward. The notice alleged the use of land for airport-related parking, it did not require that use to cease but it did require all airport-related vehicles to be removed within a defined period. To the inspector it seemed perfectly reasonable for the recipient to interpret that as meaning that the notice had been complied with once the airport-related vehicles had been removed. 

In these circumstances, the inspector pointed out, s173(11) of the Act is quite clear. Where a notice could have required an activity to cease but does not do so, when all the requirements have been complied with, then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of s73A in respect of the carrying out of the activities. 

In this case, the inspector reasoned, the council could have explicitly required the alleged use to cease by the inclusion of a requirement to that effect, but did not do so. All the requirements (that is the single one) had been complied with. He concluded, therefore, that planning permission for airport-related parking was treated as having been granted by virtue of s73A of the Act.

Further information about the operation of s173 can be found at section 4.536 of DCP Online. 

On a reasonable reading

The question of how planning permissions ought to be read comes up every so often, as it did in a recent appeal against the refusal of an LDC relating to a dwelling on a farm in Cheshire (DCS Number 400-033-432). In this case the appellants argued that the dwelling had been erected unlawfully, as a result of not being constructed on the approved site. It was also claimed that the dwelling had become lawful due to the passage of time and was not subject to any of the planning conditions imposed on the original permissions. In considering the appeal the inspector helpfully set out the relevant case law so you might wish to file this away for future use. Here goes:-

In Trump International Golf Club Scotland Ltd v the Scottish Ministers [2015], the inspector recorded, Lord Carnwath held that the process of interpreting a planning permission should not be regarded as differing materially from that appropriate to other legal documents, which must be interpreted in a particular legal and factual context. A planning permission is a public document which may be relied on by parties unrelated to those originally involved. The approach is to consider what the reasonable reader would understand the words to mean in the context of the overall purpose of the planning permission and with common sense. 

The basic rule, the inspector continued, is that a planning permission should stand by itself and the meaning should be clear within the four corners of the document. If something is not clear but the planning permission clearly incorporates the application and plans, they may be used as aids to interpretation or to understanding of the scope of what is permitted – Slough Estates v Slough BC (No 2) [1970]. 

The inspector added that in Barnett v SSCLG & East Hampshire DC [2009], it was noted by the Court of Appeal that the general rule in interpreting a grant of planning permission that, on its face, was unambiguous, was that regard could only be had to the permission itself, including the conditions in it and the express reasons for those conditions. No regard could be given to the planning application or other extrinsic evidence unless the permission incorporated the application (by reference to R v Ashford BC ex parte Shepway BC [1998], which related to an outline planning permission). However, plans were an essential part of any grant of planning permission, and it could not be said that such a grant was to be interpreted without having regard to the plans that accompanied it. The extent to which those plans would matter would vary from case to case. On its face, therefore, a full planning permission for building operations does not purport to be a complete and self-contained description of the development that has been permitted. The public, reading the decision notice, would realise that it was incomplete, indeed useless, without the approved plans and drawings. 

The interpretation of planning permissions was further considered, the inspector noted, in Wood v SSCLG & the Broads Authority [2015]. The judge in Wood held that the inspector, in seeking to identify the lawful use of the relevant planning unit, was entitled to consider all of the public documents and drawings comprised in the relevant planning applications, as well as the decision notices. He was also entitled to have regard to the development which had in fact been carried out. 

The ‘pragmatic’ approach described in Wood was endorsed in Kemball v SSCLG [2015]. The High Court held in Kemball that, in order to resolve ambiguity, it is permissible to look at extrinsic evidence including but not limited to the application form and other documents, depending on the circumstances of the individual case. 

The inspector reasoned that, ultimately, it was necessary to consider what a reasonable reader would understand in the context of the overall purpose of the planning permission and with common sense. Reading the outline and reserved matters permissions together, alongside the approved plans and drawings, she found that the approved plans showed a dwelling of the same type, form and construction as had been erected. Further, examination of physical features relative to the dwelling showed that it had been built as intended in relation to those features. A reasonable reader, she decided, would more than likely conclude that the dwelling had been sited within the plot in a location that was not wholly dissimilar to that approved. 

The inspector concluded that the appellants had not shown, on the balance of probability, that the dwelling had been erected contrary to the terms and conditions of its planning permission. As such, it was not an unlawful development that had gained immunity from enforcement action due to the passage of time. 

Further appeal cases where similar considerations applied can be found at section 9.413 of DCP Online. 

Cutting down

Happy New Year! After far too many mince pies over Christmas some serious cutting down would be in order here at DCP Blog HQ, so perhaps that’s why this one jumped out:-

An inspector has issued a certificate of lawfulness for ‘a loft conversion with hip to gable and rear dormer’ at an end terrace house in east London, deciding that it would be permitted development despite the council’s contention that it would not involve an enlargement of the dwelling (DCS Number 400-033-777).  

The appellant argued that the development would be permitted development under Class B Part 1 Schedule 2 of the GPDO. Class B, the inspector recorded, sets out that the enlargement of a dwellinghouse consisting of an addition or an alteration to its roof is permitted development, subject to a number of limitations and conditions.

The drawings showed that in order to construct the rear dormer, the roof of a rear extension would be partially removed and replaced with a flat roof. The council refused the application as it considered that the changes to the roof of the rear extension would be a reduction rather than an enlargement of the dwelling and would therefore not fall within Class B.

The inspector pointed out, however, that Class B permits enlargements consisting of alterations as well as additions. The term ‘alteration’, he remarked, is not defined in the GPDO. He reasoned that, in simple terms, an alteration is a change to something to make it different, and saw no reason why it could not include the removal of part of the existing structure.

The inspector decided that the removal of part of the pitched roof of the existing extension and its replacement with a flat roof was an alteration to the roof. Accordingly, he found that the development would benefit from the permitted development right set out in Class B of the GPDO.

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

Levelling up

We understand from an article in The Spectator that the secretary of state for housing has been seeking inspiration from Renaissance Italy to deliver the levelling-up agenda. We are a little concerned that Mr Gove might have misunderstood the nature of the task before him so we offer the following to set him on the right lines. 

The determination of a recent appeal against the refusal of a certificate of lawfulness for an outbuilding on uneven ground at a house in north London (DCS Number 400-033-474) turned on the issue of levelling up. The council argued that because of the sloping nature of the ground on which it was proposed to construct the outbuilding, the development would require significant engineering works in order to create a level platform from which to construct it, and that such works were not permitted by Class E of Part 1 to Schedule 2 of the GPDO. 

The inspector recorded that in the case of Eatherley v London Borough of Camden & Ireland [2016], which involved a basement enlargement of a dwellinghouse, the court held that the excavations and underpinning involved amounted to an activity of substance separate from the construction of the basement which would follow. This judgment upheld the decision in West Bowers Farm Products v Essex County Council [1985], where the court held that the excavation of sand and gravel to create a reservoir to serve a farm constituted a separate operation for which there was no deemed planning permission under the permitted development regime. 

In Eatherley, the inspector related, the court held that the appropriate question to be asked was whether the engineering operations required were a separate activity of substance, and that the assessment was a matter of planning judgement. The inspector held that the construction of a raised base, slab or plinth on sloping ground is a normal part of the construction of a building, and the fact that there would be walls surrounding that base of up to about 0.8m or so in height did not result in it being a separate activity of substance. He was reinforced in his views by the finding of the judge in Eatherley who commented that “engineering operations for the basement are at some point different in character to those involved in the preparation of foundations for a house”. The inspector found, in the case before him, that the construction of the base, plinth or slab was part of the preparations of foundations for the building proposed, and he considered that it could be readily distinguished from basement excavations in both its character and substance. 

The inspector concluded, as a matter of planning judgement, that the development would comprise a single operation which would benefit from the deemed planning permission granted under Class E of Part 1 to Schedule 2 of the Order, and that the council’s decision was not well-founded.

You’re welcome, minister. 

There are further appeal examples relating to this topic at section 4.3134 of DCP Online.

Coming back for more

Case law on the abuse of process has been set out by an inspector in a recent remitted appeal concerning the use of a building in the back garden of a house in south-east London (DCS Number 200-010-524) . 

In this case the council claimed that the appellants were too late to directly challenge the findings of the previous inspector by seeking a further opportunity to argue whether the building in their garden was in ancillary use or was a self-contained unit of accommodation. 

In brief, the current inspector noted that the previous inspector had been considering, first and foremost, whether planning permission should be granted; he was not required to make a fact and degree judgement on the lawfulness or otherwise of the outbuilding. She was not satisfied, therefore, that the whole matter was fairly and squarely before the previous inspector. Accordingly, she found that the appellants were not prevented from advancing arguments in respect of the use and effect of the outbuilding by way of abuse of process. 

Here is the case law as set out by the inspector:-

The rule in Henderson v Henderson [1843] established the principle that a party is expected, indeed required, to present their entire case during the course of legal proceedings. The act of raising a line of argument in subsequent proceedings which could and should have been raised in the earlier proceedings, but was omitted from negligence, inadvertence or accident constitutes an abuse of process and leaves the subsequent proceedings vulnerable to a strike-out application. In Thrasyvoulou v SSE [1990], the House of Lords confirmed that the principle applied to planning decisions. A distinction could be drawn between a decision to grant or refuse planning permission and a decision on the legal status of the alleged development. 

The rule was further explained in Barrow v Bankside Members Agency Ltd [1996], and expanded upon in Divine-Bortey v Brent LBC [1998]. When a matter becomes the subject of litigation between them in a court of competent jurisdiction, parties are required to bring their whole case before the courts so all aspects of it may be finally decided. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion, but failed to raise. The rationale being the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever. This is an abuse of process at which the rule is directed. 

The subject of court challenges is covered at section 5.4 of DCP Online. 

Rewriting history

In determining an appeal concerning enforcement action directed at works to a residential property in north-west London an inspector has highlighted that you can’t rewrite history (DCS Number 400-033-667).

Due to a number of departures from the approved drawings the council contended that a 2017 permission had not been implemented and further that it was now time-expired. The inspector, however, had regard to the remarks of the judge in the case of Hussain v Secretary of State for Communities and Local Government [2017]. He ruled that it is possible to commence a development for the purpose of section 56 of the 1990 Act and thereby meet a deadline forming a condition of the permission, and then later to deviate from the permitted works in a manner that later becomes an enforcement issue, without retrospectively altering the fact that the commencement of the development had occurred.

At her site visit the inspector saw that at least some elements of the permitted works had been undertaken in compliance with the permitted plans. The general dimensions of the extensions appeared to comply with the permission and a side entrance door appeared to be in the right place, for example. She was satisfied that, notwithstanding any subsequent deviations from the detail of what was approved, the development authorised by the permission had commenced within the relevant time limit. 

Section 4.5335 of DCP Online concerns enforcement against departure from a permission or approved plans.