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Text and context

In Oversimplification we reported an appeal case in which the inspector found that prior approval should not have been refused for a house extension on the grounds that inconsistent information regarding its maximum depth had been provided in the application: the block plan showing one measurement whereas it was stated as being another. Paragraph A.4(2)(b) of Part 1, Class A of the GPDO, he explained, does not require the plan to be drawn to any scale. The plan needed only to indicate the site and show where the proposed extension was to be located, the actual dimensions of the extension were required to be stated in writing under A.4(2)(a), which had been done.

An inspector dealing with an appeal against the refusal of prior approval for a conservatory in southeast London, on the other hand, did not accept that the written word was overriding (DCS Number 400-026-109). In this case, the appellant stated that the extension would have a depth of 4.26m but on the block plan the depth appeared to be greater than 6m. An extension of this depth would be greater than that which might be permissible under paragraph A.1(g), the inspector recorded. He considered that there was therefore a marked inconsistency between how the proposal was described on the application form and how it was shown on the block plan. In light of this inconsistency, he decided that it was not possible to conclusively state that the extension would fall within paragraph A.1(g). Noting that paragraph A.4(3) states that prior approval may be refused where insufficient information has been provided to establish whether the proposed development complies with the conditions, limitations or restrictions applicable to development permitted by Class A.1(g), he determined that he could not conclude that the extension would comply with the conditions in Article 3, Schedule 2, Part 1, Class A of the GPDO and constitute permitted development.

TBH, we’re not entirely sure where this leaves us. What if, in the second case, the block plan had shown the depth of the extension as being 5m? What would the inspector have decided then?

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

Part and parcel

All of an unauthorised 1.8m high fence at a house in Worcestershire will have to be reduced to 1m notwithstanding the appellants’ protest that part of it was lawful (DCS Number 400-026-134).

The inspector in this enforcement appeal case recorded that Part 2 of Schedule 2 of the GPDO permits the erection, construction, maintenance or alteration of a gate, fence, wall or other means of enclosure. Paragraph A.1 provides that development is not permitted if the height of any gate, fence, wall or means of enclosure erected or constructed adjacent to a highway used by vehicular traffic would, after the carrying out of the development, exceed 1m above ground level.

All of the fence exceeded 1m in height above ground level, but the appellants argued that not all of the fence was adjacent to a highway used by vehicular traffic, in that there were splayed sections which were angled away from the road immediately on either side of the access, with the furthest parts being about 5m away from the road.

The inspector explained, however, that the parts of the fence that might be said not to be adjacent to the highway were nevertheless part and parcel of the overall development. This principle, he recorded, was given judicial approval by the courts in Garland v City of Westminster [1968], where, in the case of an unauthorised building, it was held that the demolition of the entire structure could be required by an enforcement notice, without allowing the retention of that part of the extension which fell within the permitted cubic capacity.

The inspector recognised, however, that there was a realistic fallback position under Part 2, reasoning that there seemed to be little point in requiring the complete removal of the fence, as required by the notice, only for a 1m high fence to be erected immediately afterwards. He therefore varied the requirements of the notice to provide an option to reduce it in height to 1m.

Section 4.3422 of DCP Online sets out information concerning Part 2 Class A of the GPDO.

The correct form of address

An inspector has upheld a council’s refusal to grant prior approval for the change of use of a former bed shop in Hertfordshire to a restaurant notwithstanding the appellant’s argument that as the premises had three separate addresses the GPDO floorspace limit should be applied to each (DCS Number 400-026-135).

The appellant had made three separate applications (for Nos. 18, 20 and 22). The inspector noted, however, that the property had operated as a single shop for over ten years prior to the submission of the applications, observing that it remained as a single space at the time of her site visit.

The inspector recorded that ‘Schedule 2, Part 3, Class C of the GPDO permits, amongst other things, development consisting of a change of use of a building from a use falling within Class A1 (shops) of the Schedule to the Use Classes Order to a use falling within Class A3 (restaurants and cafés). This is a qualified right’, she explained, ‘in that exceptions apply whereby development is not permitted by Class C if the cumulative floorspace of the existing building changing use under Class C exceeds 150 square metres.’

The floorspaces were given as: No.18, 100 square metres; No.20, 120 square metres; and No.22, 75 square metres, the overall total being 295 square metres of floorspace. The inspector found that as the floorspace cumulatively exceeded 150 square metres it followed that the property could not benefit from permitted development rights under Schedule 2, Part 3, Class C of the GPDO. She ruled that full planning permission was therefore required, commenting that the fact that the property might historically have been separate addresses was not material to her determination of the appeals.

Section 4.3423 of DCP Online covers GPDO Part 3 changes of use.

The law is an ass

‘ “If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass — a idiot.” ‘

Charles Dickens’ beadle was probably not the first to call the law an ass and he undoubtedly won’t be the last. Nevertheless, whatever at times we might think of planning law, it is up to us to apply it in letter and spirit. Whether an inspector did quite that when he allowed an appeal (DCS Number 200-009-472) against a council’s refusal to remove an agricultural occupancy condition from a bungalow in north Yorkshire is open to question.

Having found that the surrounding agricultural land no longer formed a market garden connected with the property and that the property had been adequately marketed, the inspector concluded that the agricultural occupancy condition was no longer reasonable or necessary, having regard to the changed circumstances of the site and the absence of any demonstrated demand for the accommodation.

The council pointed out, however, that the original permission was for “the erection of a dwelling house and private garage in connection with a market garden”, and submitted, the inspector recorded “a copy of a recent Court of Appeal judgement in Finney v Welsh Ministers & Ors [2019] EWCA 1868 (‘Finney’), which held that an application under Section 73 of the Act may not be used to obtain a varied planning permission when the change sought would require a variation to the terms of the “operative” part of the permission (i.e. the description of the development for which planning permission had been granted).” He clarified that “In essence, the judgement states that a local planning authority must only consider the question of the conditions and cannot consider the description of the development to which the conditions are attached.”

The council suggested that the operative part of the permission was ‘in connection with a market garden’ and, having regard to Finney, the removal of the disputed condition (a standard agricultural occupancy condition) would not be possible as it would result in a new planning permission for a development of a different nature from that originally approved, i.e. an open market dwelling. The appellant, on the other hand, contended that the original planning permission granted consent for a dwelling house and private garage and the condition in dispute did not restrict the occupation of the dwelling in relation to the market garden, arguing that reference to the market garden was only descriptive.

The inspector observed that there was no request from the appellant to alter the description of development. He was satisfied that the disputed condition did not tie the occupation of the dwelling to the market garden and as such held that its removal would not be comparable to the situation in Finney, where the description of development was altered to avoid a potential conflict with the requirements of a replacement condition. As no replacement condition was proposed, he reasoned that such a conflict would not occur. Accordingly, he deleted the condition and granted permission for “the erection of a dwelling house and private garage in connection with a market garden”. Is this the market garden no longer connected with the dwelling?

Now, having decided that the condition was no longer reasonable or necessary it seems that the inspector’s problem was that he could not remove reference to the market garden from the description of development without his decision falling foul of Finney. At times, it can be better just to recognise that the law is an ass.

Section 9.4 of DCP Online concerns the removal of agricultural occupancy conditions.

Court cases on curtilage

Just thought we would share this handy paragraph from a recent appeal decision (DCS Number 400-026-036) on the definition of a curtilage.

“In terms of what can be reasonably considered as residential curtilage it was held in Dyer v Dorset CC [1989] that curtilage constitutes a piece of ground attached to a dwellinghouse and forming one enclosure with it; thereby the area attached to and containing a dwellinghouse and its outbuildings. The case of McAlpine v Secretary of State for the Environment [1995] did not depart from the above judgement save for the mention of it being constrained to a small area around a building, whilst the Court of Appeal in Secretary of State for the Environment, Transport, and the Regions v Skerritts of Nottingham [2000] decided that the definition of a curtilage in relation to a building must remain a question of fact and degree in each case.”

More detail on this subject can be found in an earlier blog, The definition of curtilage, as well as in sections 4.3444 and 12.912 of DCP Online.

A piece of the breach

A recent appeal decision tells us that a breach of a planning condition on part of a site for a sufficient period to result in immunity from enforcement does not result in immunity over the entire site (DCS Number 200-009-392).

This appeal was against the refusal of a certificate of lawfulness for holiday caravans in Hampshire to be occupied on a permanent residential basis. The inspector noted that there were about fifteen caravans on the land, some appearing to straddle the boundary. Four had been occupied in breach of the holiday occupancy condition, with LDCs issued. Some of the other units used contrary to the condition had applied for LDCs for permanent residential use and had been refused. At least two units continued to be occupied in accordance with the condition.

The inspector determined that the planning unit was the whole of the caravan site, given its ownership, the similarity of use over the whole site, the use by many individual occupiers of the whole site, and that pitch positions could be altered by the owner. He reasoned that the question was whether the use of one or more of the caravans on the site for more than ten years in breach of the condition meant that other caravans on the site were not covered by it. In this respect he considered that the case of The Queen on the Application of St Anselm Development Company Ltd v The First Secretary of State and Westminster City Council [2003] was relevant. In general terms, he explained, this related to a development of flats with a condition that the associated parking bays, which were marked out, should be reserved for the use of those flats. A number had been used contrary to the condition and this use had become lawful through the passage of time, so the question was whether the other parking bays could also be used not in association with the flats, contrary to the condition. It was concluded that whether the condition had required all the car parking spaces to be used, each and every car parking space, or no part of the car parking accommodation, there would still have been a breach of the condition as soon as one of the spaces ceased to be used in the manner prescribed. The inspector found that the situation before him was similar; the condition referred to ‘the caravans’ and clearly intended that all the caravans were to be used in accordance with the condition.

Overall, he concluded that while part of the land had LDCs allowing permanent use for a sole residence, other units on the site did not, and any such use of them was currently unauthorised and not lawful.

Further information concerning the breach of seasonal occupancy conditions at static holiday caravan parks can be found at section 24.251 of DCP Online.

The way forward?

Readers will be aware that the housing secretary, Robert Jenrick, has urged councils and the planning inspectorate to make more use of digital technology during the current lockdown to ensure that the planning process continues to operate effectively in order to support economic recovery. Here on the Blog we have been looking out for procedural changes which might achieve this objective.

In a recent appeal case (DCS Number 400-026-026) we were interested to note the following paragraph:

“In response to travel restrictions currently in place due to the COVID-19 pandemic I consider that this appeal can be determined without the need for a physical site visit. This is because I have been able to reach a decision based on the information already available, supplemented by additional photographic evidence supplied by the appellant and confirmed as being appropriate and representative by the Council, together with the publicly available online resource, Google Street View. Both the appellant and the Council were given an opportunity to provide comments on this approach and I have taken any responses into account.”

This appeal related to the refusal of planning permission for a bungalow at the end of a close in west Sussex. The inspector found that the proposal would appear cramped and at odds with the surrounding character and appearance of the area. Had he thought differently, however, we wonder if he would have had sufficient confidence in the adequacy of the information before him to allow the appeal without the benefit of a site visit.

It will be interesting to keep track of the proportion of appeals allowed and dismissed under the new procedures and whether an inclination towards caution will result in an increase in the number of appeals dismissed.

Section 5.34 of DCP Online covers the appeal process.


A masquerade

An inspector has declined to issue a certificate of lawfulness for development at the rear of a house in north London, ruling that it would be an extension masquerading as an outbuilding (DCS Number 400-025-329).

The appellant maintained that the development was permitted under Part 2, Class E of the GPDO. Class E, the inspector noted, authorises the provision within the curtilage of a dwellinghouse of any building required for a purpose incidental to the enjoyment of the dwellinghouse as such, subject to several limitations all of which would be complied with in the case before him. The plans indicated that the development would be used as a gym and for storage which, he remarked, are often considered to be incidental purposes.

In refusing the application, the council stated that the proposed development, ‘more properly described as an enlargement of the dwelling’, would extend more than three metres beyond the rear wall of the original dwellinghouse, and as such it would not comply with Part 1, Class A of the GPDO.

The plans showed that a structure would be erected that would be the full width of the house, the inspector related. Its nearest walls would match exactly the profile of the rear walls of the house. The gap between these particular walls would, throughout, be about 5cm. Where the house had an external door and an outside window at present, the structure would have a corresponding door and window about 5cm away. On its opposite side, the structure would have external doors and an external window.

The inspector found it very obvious that the development would be a house extension masquerading as an outbuilding. He ruled that, as such, it should be dealt with under Class A as the council indicated, where it would fail to qualify as permitted development for the reason given by the council. If begun at the time of the application for the certificate the development would not be lawful since it would not have planning permission, he concluded, dismissing the appeal.

Hmm, compare and contrast with the case we reported in Taking the Michael, and see what you think of that inspector’s decision. We are siding with this guy.

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

The unvarnished truth

Tricky things, nail bars. In a previous blog, On the nail, we reported an appeal case in which an inspector declined to issue a certificate of lawfulness for the use of a vacant shop as a nail bar on the grounds that they fall within different use classes. In Nailed it, meanwhile, the inspector, whilst recognising that nail bars are a sui generis use, allowed the change of use of a shop to a nail bar on the grounds that they are comparable uses equally appropriate to a shopping area.

In a further twist, an inspector has quashed an enforcement notice alleging the unauthorised change of use of a shop in north London to a ‘sui generis nail bar with ancillary retail’, finding that the premises were in a mixed use (DCS Number 400-025-235).

In this case the council asserted that the primary function within the planning unit was that of a nail bar, a use which is sui generis, and the other functions including retail and the serving of coffee and cocktails were ancillary. The inspector noted that the company website set out that it was a nail bar, café and bar. Details regarding parties, including food and drinks packages and the type of music played were also provided. She considered that it would be usual for drinks to be offered at a nail bar but found that the sale of drinks, including alcoholic drinks, and the hosting of parties appeared to be a fundamental part of the offering which went beyond the functional relationship between the uses that would normally be found at a nail bar. She did not consider the café and bar element to be ancillary to the nail bar use. In drawing this conclusion, she also had regard to the likely off-site impacts of the café and cocktail bar elements of the site, noting complaints which had been made regarding noise from music and shouting from the premises.

The inspector determined that the appeal site comprised a mixed use site and went on to conclude that the notice was invalid beyond correction, and should be quashed due to uncertainty.

Further information on the use class status of health and beauty salons can be found at section 17.2111 of DCP Online.

The future’s Orange

Actually, it’s not, now that Orange UK is firmly in the past and the advert featuring the company’s long-running strapline has been taken off the telly. Nevertheless, the company has left a legacy in Orange Personal Communications Services Ltd. & Ors, R (on the application of) v London Borough of Islington [2006]. This court judgment featured in a recent appeal against the refusal of outline planning permission for the redevelopment of a former Co-op store in the east Midlands with nine dwellings (DCS Number 400-025-646).

In this appeal case, the council had granted prior approval for the demolition of the building on 18 October 2017 under the provisions of Schedule 2, Part 11, Class B of the GPDO. The council explained, however, that an Article 4 Direction, withdrawing permitted development rights under Part 11, had then been issued to try to prevent the demolition of the building. Further, it had designated the town centre as a conservation area where demolition of an unlisted building under Part 11 rights do not apply.

The inspector calculated that the prior approval for the demolition of the Co-op pre-dated both the effective date of the Article 4 Direction and conservation area designation, by around 16 and 17 months respectively. He related that in Orange, having considered the provisions of section 61D of the Town and Country Planning Act 1990 which concern the effect of revision or revocation of a development order, the judge ruled that ‘in a prior approval case the planning permission accrues or crystallises upon the developers’ receipt of a favourable response from the planning authority’. On this basis the inspector found that demolition might legitimately be undertaken until 18 October 2022, five years from the date of the prior approval decision. Although previously disputed, that position was now accepted by the council, he noted. Nevertheless, the council went on to contend that it had not been demonstrated that the conversion of the building would be unviable. The inspector reasoned, however, that this point must fall away: if the building were to be demolished it could not be converted.

Allowing the appeal against refusal of outline planning permission, the inspector concluded that a scheme for nine dwellings could come forward which would integrate appropriately with local character and appearance, including historic significance.

The extraordinarily and unnecessarily complicated matter of demolition under the GPDO is addressed in section 4.3427 of DCP Online.