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A major fault

A 48-sheet digital advertising display in Leeds has been given a red light (DCS Number 400-021-227). The council, the inspector noted, considered that the main risk to public safety arose from “the potential for the colours within the digital advertisement to cause confusion when viewed in conjunction with the traffic lights, for example were the colours to match on red or amber a driver might be less aware of the need to stop.”

The appellant contended that the display and the traffic lights would not be viewed together until the stop line for the pedestrian crossing was reached but the inspector remained concerned about the potential for driver distraction.

So best to proceed with caution regarding the siting of illuminated advertising.

For more on the public safety considerations relating to advertisements see section 30.033 of DCP Online.

Movable feasts

Although achieving high-quality design is a worthy objective we do have to recognise that it can’t always be done, a truth acknowledged by an inspector dealing with an appeal against the refusal of planning permission for a café in two shipping containers in west Yorkshire (DCS Number 400-021-124).

The site was in a mixed commercial and residential area which included a busy main road. The inspector accepted that the shipping containers would be converted in a professional manner but held that they would nevertheless retain a very industrial, functional appearance. He considered that the design quality would not be of the highest standard and found that the proposal would not contribute positively to local character. However, he thought that it would also not detract from it. Although improving the current appearance of the site, he agreed with the council that the proposal would fall short of achieving the high standard of design that was sought by development plan policies and the Framework.

The inspector recorded, however, that numerous applications had been made over a significant period, seeking to achieve a beneficial use of the land. It was also apparent that the site had detracted from the appearance of the area. There was no evidence before him, he noted, to suggest that other, more appropriate uses would be likely to take place, in the near future, if the appeal were to fail. He reasoned that the proposal would result in a beneficial use of the currently derelict site and this would help to ensure that it would be better maintained. It would also bring economic benefits and provide a service to the community and surrounding businesses. He found considerable support for a more efficient use of the site and for the commercial benefits it would bring from development plan policy. In addition, the Framework is clear that significant weight should be placed on the need to support economic growth and productivity, he noted.

The inspector decided that the positive and effective use of the site and the economic benefits would be sufficient to outweigh the design shortcomings and the conflict with the design-related policies. He therefore allowed the appeal.

Section 4.13 of DCP Online discusses the scope of development control to influence the design of new development.

On safari (tents)

In dealing with an appeal arising from a dispute over the appropriate fee for a planning application for two safari tents in Herefordshire (DCS Number 400-021-168), an inspector has ruled that they constitute operational development.

The appeal was against the council’s failure to make a decision within the prescribed period, after the application had not been validated. The appellant claimed that the fee should be based on a change of use of the land, whereas the council maintained that the safari tents were structures constituting operational development which commanded a fee on that basis.

The inspector explained that whether the erection of the tents constituted operational development or not depended on whether the work would result in a material physical alteration to the land and in practice involved the tests of size, permanence and physical attachment.

With regard to size the inspector remarked that he would describe a tent with a floor area of over 45 square metres as very large. On physical attachment, it appeared to him that the overall structure was substantially fixed into the ground and would not easily be moved without being deconstructed and that this was an operation that was likely to be undertaken by a builder or similar professional. In terms of permanence the appellants stated that the wooden posts on which the platform sat were expected to last ten years. The inspector held that this was a significant period and did not suggest that the structure was transient or temporary.

Overall, the inspector found as a matter of fact and degree that the erection of the tents constituted building operations as defined in section 55(1)(A) of the Act. Their construction on the land therefore constituted development which required planning permission under section 57 of the Act. As such, he found that the council had been correct in stating that the fee for the application should be based on that applying to operational development. He concluded that as the appropriate fee for operational development had not been paid to validate the planning application no further action would be taken in connection with the appeal.

Section 4.31 of DCP Online covers the topic of operational development.

For the birds

Edinburgh City Council might have been spending too much time on Instagram.

In dealing with an appeal against the refusal of listed building consent for a loft conversion (DCS Number 400-021-104) the reporter remarked that “The mainly glazed infill of the inward-facing roof valley would not be likely to be visible from the wider conservation area, apart from within the appeal property. Although I note the council’s comment that this aspect of the works would, if undertaken, be seen in aerial photographs, I do not regard that as equating to an adverse effect on the character of the conservation area.”

Yes, it’s what the development would look like IRL from a normal viewpoint that matters, not what it might look like in photos taken from the air. This aspect of the council’s argument is strictly for the birds.

Nevertheless, the reporter concluded overall that the works to the roof would fail to preserve the character of the listed building.

The subject of alterations to listed buildings is covered at section 27.2 of DCP Online.

Less house more home

An enforcement notice requiring the cessation of the use of a dwelling in east London as a house in multiple occupation has been quashed, in light of legislation aimed at the reduction of homelessness (DCS Number 400-021-089).

The GPDO normally grants planning permission for the change of use of a house occupied by a single household within Use Class C3 to a house in multiple occupation with not more than six residents (Use Class C4), but the council had made a direction under Article 4 of the Order, removing the right to make this change anywhere in the borough without planning permission. The council was seeking to preserve and increase the stock of family housing, the inspector recorded.

The inspector noted, however, that the council’s statutory duties with regard to homelessness had recently been reinforced by the Homelessness Reduction Act 2017, which has significantly reformed homelessness legislation by placing duties on councils to intervene at earlier stages to prevent homelessness in their areas and by requiring councils to provide homelessness services to all those affected, not just those who have priority need. One of those services, he continued, is the provision of assistance in securing that sufficient accommodation and support are available.

The inspector pointed out that development plan policy and the Article 4 Direction did not impose a ban on the change of use from Class C3 to Class C4. Rather, they provided an opportunity to consider the change on its planning merits and to decide whether it should be resisted. He took the view that that consideration should take into account site-specific circumstances, present-day assessments of housing needs and changes in planning policies that had been made since adoption, and it should lead rationally to a decision whether or not planning permission should be withheld in order to preserve the stock of family housing. He found no evidence that the council had considered the change in this way, saying “All I have is the bare statement in the notice that the change of use results in the loss of a three-bedroom family house to the detriment of the stock of family housing in the Borough….”.

Taking account of site-specific circumstances the inspector concluded that housing needs were shifting and that this might make it less appropriate to resist all changes of use from Class C3 to Class C4.

Section 11.2 of DCP Online concerns houses in multiple occupation and section 11.5321 concerns the loss of housing for homeless accommodation.

Baying at the moon

An appellant seeking permission to replace boarding kennels in the New Forest found that she was not baying at the moon, an inspector deciding that accommodation for 20 dogs would not result in greater disturbance to neighbours than 10 dogs (DCS Number 400-020-838).

Here is the inspector’s reasoning:

“….20 dogs could clearly generate noise as a result of barking and other sounds, but how much more noise 20 dogs would generate than the 10 dogs licensed in 2009 is unclear. The appellant’s noise report however indicates that noise levels would not increase at the same rate as the number of dogs. Therefore 20 dogs would not sound twice as loud as 10, and in the unlikely event that all 20 dogs barked in unison, the sound generated would be louder, but not considerably louder than 10 dogs barking in unison.”

Bearing in mind the potential for improved noise insulation and a management plan, and in the context of existing traffic noise, the inspector concluded that the development would not cause unacceptable adverse effects on the living conditions of the occupiers of neighbouring properties by virtue of noise and disturbance. A bone of contention remained, however, the inspector deciding that the development would have an unacceptable adverse effect on highway safety.

The topic of noise from kennels is covered at section 23.133 of DCP Online.

Problem solved

Last spring the chief executive of the Planning Inspectorate explained that a large part of the reason for the delay in the handling of planning appeals was “the unexpected receipt of more than 1000 prior approval appeals for phone kiosks”. Here on the Blog we remarked that the interest in phone kiosks arises largely from their function as structures for the display of advertisements, and we suggested a solution to the problem (Whatever happened to ….)

Following a recent court ruling, Westminster City Council v Secretary of State for Housing, Communities and Local Government 5/2/19, however, it seems as if the problem might have been solved thanks to the judge’s interpretation of the GPDO. In this case the court quashed the inspector’s decision (DCS Number 400-019-179) to grant prior approval for a phone kiosk. The judge noted that a development only falls within the scope of the relevant class of the GPDO if it is for the purpose of a telecommunications network, ruling that in order to benefit from permitted development rights, the kiosk had to fall fully and squarely within that class. Because the kiosk was for the dual purpose of communications and advertising, the judge reasoned, the council was right to find that it did not fall within the class.

Good news all round, as we see it. Firstly, the ruling puts an end to any more prior approvals for phone kiosks that nobody needs, and secondly, planning inspectors will no longer be faced with the soul-destroying task of wasting their time on prior approval appeals relating to phone kiosks that nobody needs.

Section 4.3429 of DCP Online sets out the GPDO on telecommunications.

Group value

In dealing with an appeal against the refusal of retrospective planning permission and listed building consent for alterations to a house in Tyneside (DCS Number 400-020-918) an inspector has corrected a couple of common misconceptions.

The inspector acknowledged that the list description was a single entry comprising multiple properties. She explained, however, that “List entries of this kind were a short-hand method allowing a number of buildings with very similar characteristics to be included on the statutory list without the unnecessary duplication of a separate entry for each one. This does not diminish the significance of No 51 as a heritage asset in its own right. It is therefore not possible to infer, as the appellants suggest, that the effect of the appeal scheme should be judged proportionately against the total number of buildings named in the list entry.”

The inspector also noted the appellants’ assertion that it could be seen from the list description that the significance of the heritage asset was described in relation to the frontage features. Again, however, she explained that “..buildings are listed in their entirety. The earlier list descriptions tend to be brief, and it is not uncommon for them to mention only the features of the front elevations, primarily for identification purposes. They are by no means exhaustive records of the significant features of individual assets. Therefore, no inference may be made by the omission of, for example, descriptions of interiors, or other parts of listed buildings.”

The inspector considered that the rendering and replacement doors and windows constituted inappropriate features that were inconsistent with the architectural character of the building, concluding that the harm to the heritage asset was unacceptable.

Section 27.23 of DCP Online concerns alterations to listed buildings.

Decluttering

Possibly, the council involved in this appeal case (DCS Number 400-020-987) has been caught up in the current craze for decluttering.

The case relates to a fruit and vegetable shop in Bedfordshire. The appellant was objecting to the imposition of a condition attached to planning permission for two display units on the forecourt. The condition required the removal of an existing wooden display structure within two months of the permission.

The inspector recorded that Paragraph 55 of the Framework states that planning conditions should be kept to a minimum and only imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects. Planning Policy Guidance, he continued, states that the six tests must all be satisfied each time a decision to grant planning permission subject to conditions is made. Furthermore, the tests are set out in an accompanying table to the PPG alongside key considerations.

Most notably, the inspector remarked, in considering whether a condition fairly and reasonably relates to the development to be permitted, one key consideration is that a condition cannot be imposed in order to remedy a pre-existing problem or issue not created by the proposed development. After ruling that the condition was unnecessary, imprecise and unreasonable, he concluded that it was invalid.

Further appeal examples concerning the tests for planning conditions can be found at section 4.412 of DCP Online.

Hard sums

Here is an example of the simplified and improved permitted development system (DCS Number 400-020-975). This comes from an appeal against the refusal of a lawful development certificate for extensions to a terrace house in north London, in which the inspector referred to the various elements of the proposal as A, B and C.

“The appellant has provided a detailed breakdown of the volume calculations for the resulting roofspace of the proposal corroborated by a Surveyor with an Advanced Mathematics degree. These calculations demonstrate that the wrong formulae were utilised by the Council in determining the volume of the C1 identified element (an oblique pyramid) and the volume of C2 (a triangular prism) at the time the application was determined. The Council used the formulae 1/2 bh where b equals the area of the base of the pyramid and h is its height for C1 and bh for C2. Its volume calculation for C1 was 7.095 m³ and for C2 was 5.805 m³ making a total volume, including the hip to gable and rear dormer, at the time of the determination of 41.141 m³.”

The inspector continued “The correct formulae for C1 is 1/3bh and for C2 it is 1/2 bh . These result in a volume calculation by the appellant’s expert of 4.73 m³ for C1 and 2.9025 m³ for C2. The appellant’s expert also recalculated element A to have a volume of 12.032 m³ and element B to have a volume of 18.9 m³. The appellant’s total resulting roofspace is therefore 38.5645 m³.”

The inspector concluded that the volume of the resulting roofspace of the proposal would be less than 40m³. As such, it complied with limitation (d) (i) of Class B of Part 1 of Schedule 2 of the GPDO and would be permitted development.

Simplified? Pah!

Further information concerning Part 1, Schedule 2 of the GPDO can be found at section 4.3421 of DCP Online.