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Parish pump politics

A recent appeal decision (DCS Number 400-029-264) serves as a reminder that planning committee members who fail to heed their officers’ advice, having been swayed solely by local opinion, are in peril of seeing an award of costs made against their council. 

In this case neighbours were concerned that an additional bedroom in a West Midlands house in multiple occupation would result in noise and disturbance, and parking pressure on local roads. 

The inspector recorded that in reaching its decision, the council had clearly diverged from the views of the planning officers and, with regards the second reason for refusal, the highways officers. He recognised that elected members of the planning committee were entitled to reach their own conclusions based on the evidence before them. However, he noted that no substantive evidence had been produced to support the council’s concern that the addition of a single additional bedroom would result in additional parking demand such that it would harm highway safety or that the single additional bedroom would result in harm to the living conditions of the adjoining occupiers. Awarding full costs to the applicant, he found that having relied solely or mainly upon objections from local residents in the absence of substantive evidence to support these concerns amounted to unreasonable behaviour on the part of the council.   

There is a section concerning the failure to substantiate reasons for refusal at section 6.131 of DCP Online and a whole host of appeal examples where costs have been awarded to the applicant in such circumstances at section 6.1311.

Not the same

An inspector has quashed an enforcement notice requiring the demolition of an extension to a house in Surrey after deciding that it was permitted development (DCS Number 400-028-983).

The inspector recorded that Class A of Part 1, Schedule 2 of the GPDO permits the enlargement, improvement or other alteration of a dwellinghouse. Paragraph A.3 provides that development is permitted by Class A subject to conditions, of which it was argued by the council that condition (a) was in breach, in that the external materials were not of similar appearance to those used in the construction of the exterior of the existing dwellinghouse. The Order gives no further interpretation of the meaning of this condition, the inspector noted. 

The extension was wholly finished in an off-white render whereas the house was finished in a variety of materials. Nevertheless, the inspector found it clear from the words of the Order that the exterior work must be of a “similar appearance” to the existing dwelling; they do not have to match exactly. He reasoned that the extension was seen in public views from the road alongside the front elevation, and having regard to the purpose of the condition to minimise visual impact, he considered that it was against this elevation that the comparison needed to be made. 

Looking at the front elevation as a whole, the inspector found that the overall impression was of a dark-coloured finish with a subsidiary element of pale render. However, the extension was single-storey, and the predominant material on the ground floor of the original house was render, albeit that there were exposed timbers and a brick plinth. Even though the extension rose above the rendered part of the ground floor of the dwelling, he considered that it made no sense to attempt to ensure that part of it was composed of tile-hanging, which was only found on the first floor. Similarly, he considered that a rigid duplication of the whole palette of materials found on the house, to include a brick plinth and exposed timbers could give rise to ludicrous results. He concluded, therefore, that the adoption of render as the principal exterior finish on the ground floor achieved compliance with condition (a).

Information concerning Part 1 permitted development can be found at Section 4.3421 of DCP Online.

Stick to the plan

Recent events in the United States have given us all reason to reflect on the value and nature of democracy. Against this background comments from a planning inspector in a recent appeal decision (DCS Number 200-009-796) provide an important reminder that we operate a plan-led system built upon community involvement:-

“Whilst the PPG [Planning Practice Guidance] provides direction on how the Framework’s provisions could be applied, it should not be read as an extension to it. Indeed, the PPG does not set out mandatory requirements and has not been subject to the rigours of external scrutiny or consultation.”   

 “….the PPG is merely guidance and … the development plan remains the starting point for decision making.”

Further information concerning the primacy of development plans is to be found at section 4.2 of DCP Online.

A Trojan horse?

The description of development from a recent appeal decision (DCS Number 400-029-206):-

“The development proposed is wooden horse field shelter.”

In this case the inspector was unconvinced by the appellant’s argument that the timber building was for outdoor sport and therefore not inappropriate development in the green belt. He observed that the building was sited within a garden area where there were garden chairs, and it had grooved timber decking.

So it was a Trojan horse….

Section 23.2321 of DCP Online covers horse-related development in the green belt.

Blue Monday

With the prospect of Blue Monday looming we are sorry to report that the demands of planning legislation on planning professionals might be even greater than we thought. 

A recent appeal case (DCS Number 200-009-731), though relating specifically to a proposed agricultural development, has a bearing on the consideration of prior approval applications in general.

In this case prior approval for a barn on a farm in Hampshire was rejected at appeal after the inspector found that the appellant was not able to prove security of tenure of the requisite five hectares of land for the barn to comprise permitted development. 

Class A of Part 6 of Schedule 2 to the GPDO, the inspector recorded, grants planning permission for, amongst other things, the erection of an agricultural building, subject to certain limitations and restrictions. The council’s decision notice stated that the development was not considered to comprise permitted development under Class A of Part 6, as the site area had not been demonstrated to be five hectares or more, and it had not been confirmed that the proposal was reasonably necessary for the purposes of agriculture on the unit in relation to an agricultural trade or business.

Readers might be aware that in Keenan v Woking BC & SSCLG [2017] the judge said that an application to a local planning authority for a determination as to whether its prior approval would be required does not impose on the authority a duty to decide whether the proposed development is in fact permitted development under the GPDO. In New World Payphones Ltd v Westminster City Council [2019], however, the Court of Appeal reasoned that in Keenan the thrust of that part of the judgment was that, by requiring a developer to seek prior approval limited to restricted planning issues, that did not confer upon the authority a power to grant planning permission for development outside the defined class of permitted development. 

The inspector acknowledged that the judgment in New World Payphones Ltd related to the consideration of the duality of phone kiosks proposed under Part 16 of the GPDO. This judgment sets out the principle that to take advantage of being permitted development, the proposed development must fall entirely within the scope of the GPDO. Nevertheless, the judgment confirms that on an application to an authority for a determination as to whether its prior approval is required, when it is in issue, the authority is bound to consider and determine whether the development otherwise falls within the definitional scope of the particular class. 

As a later judgment to both the Keenan v Woking BC & SSCLG [2017] and R (oao Marshall) v East Dorset DC & Pitman [2018] judgments, and being of a higher court than the Marshall judgment, the inspector found that the New World Payphones Ltd judgment takes precedence. While this judgment relates to development under Part 16 of the GPDO, he considered that the wording of its findings strongly indicate that the approach is not solely restricted to Part 16 developments. Based upon the evidence before him, he was satisfied that the findings of the New World Payphones Ltd judgment are equally applicable to Part 6 of the GPDO. 

Having regard to these conclusions the inspector identified the main issue to be whether the proposed development would constitute permitted development under Class A of Part 6 of Schedule 2 of the GPDO. After examining the evidence he was unable to find that the agricultural unit was five hectares or more as required by Class A of Part 6. Therefore, the proposed building was not permitted development.

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

This too shall pass

A Happy New Year to all our readers! Perhaps it hasn’t been entirely the start to the year that we were hoping for but a recent appeal decision (DCS Number 400-029-162reminds us that planners are always looking ahead to a brighter future. 

In this context the inspector found that the short-term economic benefits of three new dwellings outside a village in the north-east of England were not outweighed by the long-term harm to the setting of a listed late 17th century/early 18th century farmhouse:-  

“The public benefits from the proposed development flow largely from the economic stimulus generated through the short-term construction phase. It is acknowledged that the Covid-19 virus has had catastrophic consequences on the UK economy and that construction provides an important means by which to stimulate growth and employment. 

However, there is also an important need to protect the integrity of listed buildings which help define the character of the settlements in which they sit. The short-term public benefits of this appeal proposal should not be underestimated but they are, nevertheless, insufficient to outweigh the long-term harm to the setting of this listed building.”

There is a section which concerns the setting of listed buildings at 4.1681 of DCP Online.

Straight from the horse’s mouth

Ménage and manège are often confused but we have it from an authoritative source – a planning inspector dealing with an appeal concerning a site in Hertfordshire (DCS Number 400-028-935) – that if it’s horse-related it’s likely to be manège. Here is what he says in a Procedural Matter paragraph:-

The decision notice, case officer report, application form and application planning statement all use the word ‘ménage’ whereas the appeal statement refers to the word ‘manège’. The Oxford English Dictionary uses the latter for its description of an enclosed space for the training of horses and the practice of horsemanship. I have therefore proceeded on the same basis throughout this decision, and replaced the word ‘ménage’ where previously used. 

There are appeal examples relating to manèges at 23.2332 of DCP Online.

Burnt to a cinder

A couple who wished to replace a Hertfordshire cottage which had been destroyed by fire found their hopes were in cinders when an inspector pointed out that it would be contrary to green belt policy (DCS Number 400-028-695).

The inspector set out that Paragraph 145 of the Framework establishes that the construction of new buildings should be regarded as inappropriate in the green belt, unless they fall within certain categories of development which may be regarded as not inappropriate, subject to certain conditions. Part d) of this paragraph, he recorded, lists the replacement of a building as one such exception, provided that the new building is in the same use, and not materially larger than the one it replaces. He appreciated that both parties had considered the dwelling as a replacement for that which existed prior to the fire. However, for something to be considered as a replacement, he pointed out, the element that it replaces must exist at the time the replacement development is considered. However, there was no existing building on the site, and as such, the proposal did not fall to be considered under the exception at Paragraph 145(d) of the Framework, he ruled.

Rather, the inspector determined, the proposal comprised the redevelopment of previously developed land and fell to be considered under Paragraph 145(g). This exception allows for the redevelopment of previously developed land providing it would not have a greater impact on the openness of the green belt than the existing development. But, he reasoned, the proposed new building would have a greater impact on openness as no building currently existed on the site. 

The inspector next turned to a consideration of openness in spatial and visual terms. He found that due to its overall height and bulk, the proposed dwelling would be visually intrusive. In addition, he found that the development would result in less than substantial harm to the setting of a conservation area and listed building. 

The inspector recognised that the appellants had lost their established residential use for reasons beyond their control and he accorded this factor great weight. He nonetheless concluded that the benefits of providing a replacement dwelling following the destruction of the previous property by fire did not clearly outweigh the harm he had identified. Consequently, there were not the very special circumstances necessary to justify inappropriate development in the green belt.

There is an interesting section on the loss of original dwellings by accident at section 9.6311 of DCP Online.

Good news, bad news

A north Devon council which issued an enforcement notice alleging “the material change of use of the land involving the erection of a building for residential use entailing human habitation” was given some good news and bad news by the inspector determining the subsequent appeal (DCS Number 400-028-602). The inspector found that the council had conflated the operational development with the material change of use but nevertheless declined to rule that the notice was a nullity. He did rule that it was invalid, though. 

In finding that the notice was not a nullity the inspector explained that the modern approach to the question of nullity is to be found in the judgment of the High Court in Oates v SoCLG and Canterbury [2017], which drew extensively upon the preceding case law on the subject. A number of principles emerge from this judgment, he stated, including that the test in relation to nullity is best understood not as one of ‘hopeless ambiguity’ but rather as a failure to tell the recipient with ‘reasonable certainty’ what the breach of planning control is and what must be done to remedy it. The judgment in Oates also indicates that a degree of uncertainty does not necessarily render it non-compliant with statute, and that the notice should be read as a whole. Overall, the judgment in Oates indicates that the question of nullity should not be approached in a way which is unduly technical or formalistic. 

Looking at the notice before him in the round, the inspector was satisfied that it contained all the essential components set out at Section 173 of the 1990 Act. By reading the alleged breach of planning control and the steps required to comply with the notice in conjunction, together with the reasons for issuing the notice, he considered that it was reasonably certain that the notice was purporting to attack a material change of use of the land and/or of a building on the land. He acknowledged that the notice contained some significant errors across the piece. However, when read as a whole and adopting the principle advocated in Oates that the question should not be approached in a way which is unduly technical or formalistic, he would not go so far as to say that the notice was a nullity. 

To find out why the inspector decided the notice was invalid, take a look at (DCS Number 400-028-602), particularly if you are an enforcement specialist. The decision is very instructive and a model of clarity.

The importance of framing the correct allegation in an enforcement notice is explained at section 4.533 of DCP Online.

Not very unauthorised

In determining an appeal against an enforcement notice requiring the demolition of an unauthorised roof extension at a house in Hertfordshire an inspector has ruled that there is no degree of tolerance in permitted development rights (DCS Number 400-028-517).

The appellant contended that the amount of development falling outside the limitations of permitted development was so minor that the roof extension had limited impact. Also, because the vast majority of the roof extension would be within permitted development allowances, this represented a strong fallback position.

The inspector was not persuaded by these arguments. The limitations on the size of permitted development are expressed precisely in the GPDO, he recorded, ruling that there cannot be a ‘bit’ or a ‘minor’ infringement. Something is either permitted development or it is not, he held, and “an assessment of impact or harm does not come into it.” He considered, furthermore, that the existence of permitted development rights could not be used to justify a grant of permission for the roof extension as it was. He reasoned that the notice could not be varied to require the removal of the offending element so as to modify the residual roof extension in line with the parameters of permitted development, because the GPDO does not grant permission retrospectively and the breach of planning control would not be remedied. A fallback position has to be lawful, he explained.

The inspector acknowledged that, once the roof extension had been removed, the roof made good and all resulting debris removed from the land so that the enforcement notice was fully complied with, the appellant would have permitted development rights to erect another dormer or roof extension on the rear roof slope. He recognised that he had the power to grant planning permission for ‘part of the matters’ alleged and that term could be applied to a smaller roof extension. However, he found that he could not tie any permission granted for a smaller roof extension to any plans showing a smaller one to describe the works in words with sufficient precision.

The notice was upheld.

Part 1, Class B GPDO rights are set out at section 4.3421 of DCP Online.