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In determining an appeal against an enforcement notice directed at the conversion of a terrace house in southeast London to two flats (DCS Number 400-024-950), an inspector has explained how a notice might constitute a nullity.

The appellants claimed that the notice which had been served was a nullity because, in addition to requiring that the use as two flats should cease, it required the removal of the kitchens. There was, however, no requirement for the property to revert to a single family dwelling. They argued that the notice was fundamentally flawed.

The inspector explained that, where there has been a change of the lawful use of a single dwelling, a requirement simply to cease the unlawful use is sufficient. Indeed, he continued, an enforcement notice cannot require a former use to be resumed (Lipson v SSE [1976]). If a requirement to cease the unlawful use of land or building is complied with, the previous lawful use may resume by virtue of section 57(4) of the Act.

The inspector went on to explain that an enforcement notice can be a nullity (just a piece of waste paper), if for instance, it is missing some vital element and so is defective on its face, (R v Wicks [1996]). Also, in South Hams DC v Halsey [1996]) it was held that nullities should be confined to the situation where there is a patent defect on the face of the enforcement notice. That was not the situation before him. The complaint amounted to concern about the possible effects of compliance with the requirements but the enforcement notice did not lack any vital element. The description of the breach of planning control in the notice was clear, he ruled, and the notice was not a nullity.

Further information on this subject can be found at section 4.533 of DCP Online.

Will it stand or will it fall?

Appellants who were hoping to gain permission for an additional residential caravan on their pitch in north Yorkshire will no doubt be interested in the fate of the Finney judgment, reported in A conflict situation, in the Supreme Court.

In this case (DCS Number 400-025-064) the inspector related that permission had been granted in 2014 for the ‘siting of a static caravan and a touring caravan’. The permission was subject to a condition that there could only be two caravans on the pitch, only one of which could be a static caravan. The appellants sought permission under section 73 of the Act to place two static caravans and one touring caravan on the site.

In the light of Finney, however, the inspector explained that a change in the description of the permitted development would be outside the power conferred by section 73. If he were to allow the appeal and left the description of the permitted development intact, there would be a conflict between what was specified in the description and what the new condition allowed. He advised that the Finney case was going to the Supreme Court, but that his decision was based on the law as it currently stands.

The inspector concluded that he could not proceed to consider the appeal as it would be beyond his powers to do so under section 73. On that basis, the appeal was dismissed.

Watch this space.

Section 4.416 of DCP Online concerns the removal or amendment of conditions.

A poisoned chalice?

Is pre-application advice sometimes a poisoned chalice? A case in point concerns a recent appeal relating to a proposal for a new dwelling to the rear of an existing house in Derbyshire (DCS Number 400-025-015). In this case the inspector awarded costs against the council after she found the pre-application advice which had been given to be misleading.

The inspector acknowledged that informal advice given before an application is made is given without prejudice and cannot pre-determine the outcome of a subsequent application,  which has to take account of all material factors at the time the application is being considered. She noted that such a caveat was included in the written response. Nevertheless, she found that, whilst pre-application advice does not guarantee a favourable outcome, the appellants had amended the scheme in light of the advice given, and subsequently the application was refused on a matter which they had been advised could potentially be addressed, and a matter which was not raised as an issue in any event.

The inspector concluded that unreasonable behaviour resulting in unnecessary or wasted expense, as described in Planning Practice Guidance, had been demonstrated and that a full award of costs was justified.

In ‘Re-thinking the Planning System for the 21st Century’, published on 27 January, the Policy Exchange recommended that “As long as a proposed development does not break the development control rules set out in the local plan, meets building regulations and is not in a protected area, it should be permitted” and that local politicians ”should have no say over deciding applications for new developments”. This could be a bit radical for some, but it might well result in more reliable pre-application advice.

Section 5.12 of DCP Online covers pre-application consultation and discussion.

A place for everything

….and everything in its place.

An inspector has decided that a digital advertisement to replace a paper and paste advertisement would be out of place in suburban Bristol (DCS Number 400-024-682).

The inspector noted that the 48-sheet poster had been in place on the flank wall of the house for over ten years. She considered that the poster was seen over the greatest distance along the street, albeit that it did not directly face residential windows. Residents and passers-by would be highly aware of the advertisement, she held, as it could be viewed whenever they left their houses and passed the bottom of the street.

The inspector opined that internal illumination and frequently changing images would alter the character and amenity of the residential street, not least because these features are more typically associated with industrial and commercial areas. She commented that illuminated and changing images are designed to catch attention, they convey considerably more information than a paper equivalent and will inevitably be more intrusive, having a negative effect on visual amenity in a residential context. Overall, she concluded that a digital poster was not consistent with the character of a residential area and the proposal would therefore be harmful to visual amenity.

Further appeal examples relating to illuminated advertisements in residential areas can be found at section 30.033 of DCP Online.

As the pigeon flies

In an appeal case in which the potential threat to residential amenity came from an airborne source the inspector took the topography of the land into account in coming to her decision. In this case (DCS Number 400-024-952) a south Wales householder was denied permission to retain a pigeon loft in his rear garden.

The pigeon loft was located in an elevated position on a steep valley side, above residential properties. The inspector considered that pigeon lofts can have negative impacts on the use or enjoyment of land and properties as a result of the potential for odour, noise, faecal deposition and vermin. She acknowledged that the loft was located some 25 metres from the rear boundaries of a number of residential properties. Nevertheless, she judged that, given the topography, the separation distance ‘as the pigeon flies’ was limited should noise and odour problems arise, and also presented opportunities for birds to roost on neighbouring dwellings and structures not in the control of the appellant.

Coo.

Section 12.833 of DCP Online covers pigeon lofts and aviaries.

Oversimplification

A light touch is one thing but you can go too far.

In dealing with an appeal relating to a prior approval application for a rear extension to a house in southeast London under Part 1, Class A of the GPDO (DCS Number 400-024-852) an inspector pointed out that the plans do not need to be drawn to scale.

The council’s decision notice stated that it had refused prior approval because of inconsistent information regarding the maximum depth of the proposed extension; the extension drawn on the block plan measured 4.78m whereas it was stated as being 5m. However, “Be that as it may”, the inspector remarked, “paragraph A.4(2)(b) does not require the plan to be drawn to any scale.” He explained that the plan needed only to indicate the site and show where the proposed extension was to be located; the actual dimensions of the proposed extension were required to be stated in writing under A.4(2)(a), which the appellant had done. The inspector noted, in addition, that the appellant had also submitted detailed drawings, which clearly indicated that the extension would project 5m. Thus, he ruled, precise accuracy of the delineation of the extension on the block plan was not critical. Accordingly, he found that the council’s stance on the matter was incorrect and that prior approval should not have been refused for the reason given on the decision notice.

As planners, perhaps we should be expected to understand this situation, but isn’t it an oversimplification of the usual requirements which has the potential to cause confusion for anyone else?

Commentary regarding Part 1 of the GPDO can be found at section 4.3421 of DCP Online.

A light touch approach

The change of use of a B1(c) light industrial building in southeast London used for the manufacture of event sets to C3 residential under Schedule 2, Part 3, Class PA of the GPDO has been deemed to be permitted development by an inspector notwithstanding intervening uses since the relevant date (DCS Number 200-009-116).

The inspector recorded that development is not permitted under PA.1.(b) of the GPDO if the building was not used solely for a light industrial use on 19 March 2014 or, in the case of a building which was in use before that date but was not in use on that date, when it was last in use. His reading of the GPDO was that the right does not depend on an ongoing light industrial operation at the time of the prior approval application, provided the lawful use of the building stood and there had been no intervening change to this. He considered that the latter should be assessed in respect of matters of fact and degree. He noted that only very superficial internal changes had taken place since the appellant had acquired the vacated premises in 2016, and there had recently been a temporary use when the building had hosted a ‘pop up’ art gallery. The building was also being put to use for the garaging of a number of models of classic car. These did not establish a material change in use of the building, he ruled.

After reviewing the evidence the inspector found that, on the balance of probability, the appeal property had been shown to have been used solely for a light industrial Class B1(c) use on or before 19th March 2014 and no other use had subsequently become established. Therefore, the building would benefit from the permitted development right sought, subject to satisfying the conditions in paragraph PA.2. Of these it was only PA.2.(1)(b)(iv) that was in contention between the parties. On this, he was of the view that residential use would not have an adverse impact on the provision of industrial or storage and distribution services in the area subject to conditions relating to noise, air quality and odour which would ensure satisfactory living conditions.

In reaching his conclusion the inspector remarked that he had taken into account that the permitted development right assumes the principle of the proposal is acceptable and that, in this context, the prior approval process applies a lighter touch than were express planning permission to be required. He also had regard to the fact that, whilst the appeal site was within and surrounded by employment uses, it amounted to a small proportion of the industrial area.

The legislation relating to Part 3 Class PA can be found at section 4.3423 of DCP Online.

Anytime soon

In Shakespeare’s day ‘presently’ only meant in the present, now. Over a few centuries the procrastinators amongst us have managed to stretch the meaning of the word such that it can also mean in the near future, soonish. Likewise, ‘immediately’ might not mean exactly the same thing to one person as it does to another. Against this background you can see the inspector’s problem with an enforcement notice which required the use of a site in Gloucestershire as a storage yard to cease ‘immediately’ (DCS Number 400-024-830). He declared the notice a nullity and without legal effect.

The inspector explained that in R (oao Lynes & Lynes) v West Berkshire DC [2003] the judge found that a period must have a start point and an end point. He pointed out that the term ‘immediately’ does not. The notice therefore failed to specify a period for compliance as required by s173(9) of the Act.

The inspector reasoned “There is, on the face of it, a simple and obvious remedy, namely to use the power available under s176(1) of the Act to vary the notice and substitute a true period for compliance, such as one day.” He noted, however, that in Lynes the judge said:

I am very conscious of the need to avoid technicalities and artificial distinctions when dealing with enforcement notices, but the failure to comply with a basic statutory provision for a valid enforcement notice, such as specification of a period for compliance, cannot be said to be a technicality. An enforcement notice which, on its face, does not comply with such a requirement, is a nullity and therefore incapable of amendment.

Accordingly, the inspector had to conclude that the notice was a nullity.

Just to be clear, we don’t believe that “The use must cease one day” is what the inspector meant.

Further appeal examples relating to the period of compliance can be found at Section 4.5361 of DCP Online.

A conflict situation

A judgment handed down by the Court of Appeal towards the end of last year confirmed that the variation of a condition under section 73 of the Town and Country Planning Act 1990 must not result in conflict with the original description of development (Finney v Welsh Ministers [2019]).

The effect of the ruling in practice can be seen in a recent appeal concerning alterations to a building in central London (DCS Number 400-024-536). Planning permission had been granted for an extension to the rear closet wing of the building at second floor level and was subject to a condition stipulating that the development should be carried out in accordance with the drawings listed on the decision letter. The appeal related to an application to amend the scheme by revising the plans referred to in the plans condition. The proposed change would be to enable the closet wing, which would accommodate a lift, to be extended one floor higher to third floor level.

The inspector identified the main issue as being whether it was possible, in law, to amend the scheme by varying the plans condition in the way proposed. He recorded that in Finney, the Court of Appeal referred to s73(2) of the Act, which indicates that, when considering applications under s73(1) for planning permission for the development of land without complying with conditions subject to which a previous planning permission has previously been granted, the local planning authority must only consider the question of the conditions. It cannot, therefore, consider the description of the development to which the conditions are attached. The court found that the ‘natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development.’ Moreover, Finney confirmed that there should not be a conflict between what was permitted in the original consent and what the new condition requires.

The inspector related that in Finney, “the original description of development referred to ‘two wind turbines, with a tip height of up to 100m.’ However, when the development was allowed on appeal, subject to a condition referring to new plans showing a tip height of 125m, the new description of the permitted development excised the reference to a tip height of up to 100m. The court held that if the description of the permitted development had been left unchanged, there would have been a conflict between what was permitted (a 100m turbine) and what the new condition effectively required (a 125m turbine), and that a condition altering the nature of what was permitted would have been unlawful.”

The inspector found that the Finney case was analogous to the appeal proposal before him which effectively sought to amend the permission to allow the closet wing to be extended one floor higher, to third floor level, as shown in the revised drawings. However, the description of development in the original planning permission referred to ‘extension to rear closet wing at second floor level’. Therefore, there would be a clear conflict between the description of the permitted development, which Finney said cannot be altered via s73, and what would be shown in the revised plans referred to in the plans condition. Given the description, such a condition, requiring the development to be carried out in accordance with plans showing the closet wing to be extended to third floor level, would alter the nature of the development and be unlawful.

The inspector concluded that it was not possible to amend the scheme by varying the plans condition attached to the extant planning permission in the way proposed.

Section 4.416 of DCP Online concerns the removal or amendment of conditions.

The Mansi doctrine

The Mansi doctrine is a long-established planning principle which can be seen in action in an appeal case relating to the short-term letting of a basement flat in west London (DCS Number 400-024-249).

The enforcement notice required the use of the basement flat as short-term let accommodation to cease. The inspector agreed with the council that the use of the flat for short-term lets had a harmful effect on the borough’s housing stock and thereby conflicted with development plan policies. He recorded, however, that “The use of a residential property for temporary sleeping accommodation in Greater London constitutes a material change of use in certain circumstances, by virtue of the provisions of s.25 of the Greater London Council (General Powers) Act 1973. The Deregulation Act 2015 amended this provision to say that it does not apply in specified circumstances and where the use for temporary sleeping accommodation does not exceed 90 nights in a calendar year.” Accordingly, he pointed out that the notice would have the effect of prohibiting all temporary sleeping use. It is well-established law, he explained, that an enforcement notice should not preclude lawful uses (Mansi v Elstree RDC [1964]). As the notice would have the effect of prohibiting use for temporary sleeping accommodation of no more than 90 nights, it would remove a lawful use and offend the Mansi doctrine. He therefore varied the notice to protect the lawful use provided by the Greater London Council (General Powers) Act 1973, as amended.

The details of the Mansi court case can be found at section 4.5362 of DCP Online.