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A little to the left

Some three years ago we published a blog about How to get an open market dwelling in the countryside. In case you missed it, here is the procedure, exemplified by an appeal case in east Yorkshire (DCS Number 400-023-743):

The appellant in this case succeeded in gaining an unencumbered dwelling after satisfying an inspector that an agricultural occupancy condition was of no effect, the dwelling being materially different from that which had been granted permission.

The appellant pointed out that the house had been built on a different footprint and was a different shape from that approved; that there was an 18m distance between the location of the house as built and the house subject of the permission; and that the access that had been built was in a different location from that approved.

The inspector judged that the degree of change was not minor. Rather, he considered that what had been built was materially different from that which had been approved under the reserved matters. The council argued that even if the development that had been constructed did not relate to the reserved matters approval, it did fall within the scope of the original outline permission. After reviewing the evidence, however, the inspector did not believe that any reasonable person visiting the site with the benefit of the approved plans would conclude that the dwelling was the dwelling which was the subject of the outline permission or of the reserved matters approval.

The inspector explained that, as case law has established, if a development has been carried out other than in accordance with the planning permission granted it is unauthorised and unlawful, and therefore any conditions attached to the permission can have no effect on it. Issuing a lawful development certificate, he determined that the planning permission in question had not been implemented and therefore the building was not bound by the agricultural occupancy condition attached to the outline permission.

Section 9.413 of DCP Online concerns the validity of an agricultural occupancy condition where the dwelling has not been built in accordance with the approved plans.

Shocking

In a “failure to determine” appeal relating to a proposal for extensions to a house in north London (DCS Number 400-023-846) we found this commentary from an inspector:-

“The Council relies on a Delegated Report as their appeal statement. Most of the report is poorly written and parts are unintelligible.”….”Other parts of the report are incorrect…”…. “It is worth noting… that parts of the report…appear to relate to a different proposed development.”

We can do better than this, can’t we?

Section 5.344 of DCP Online concerns “failure to determine” appeals.

By the book

In determining an appeal against the refusal of planning permission for the redevelopment of a suburban house in Northamptonshire with a care home, an inspector was not persuaded regarding the necessity of a financial contribution to fund increased library provision (DCS Number 400-023-756).

The inspector remarked that he had not been provided with any background information to explain the scale of the requested financial contribution. Furthermore, it had not been made clear as to how the contribution was to be spent, or indeed whether it would be spent on enhancing the services available within the local library.

Interestingly, the inspector noted that the care home operators would be making their own private library provision, such as in communal areas. He recognised that libraries can play a role in providing a venue for social activity, and, as a result, he had regard to the layout of the proposed development, observing that it included several areas where residents might socialise. Accordingly, he concluded that there was not sufficient justification to insist upon a financial contribution towards library provision.

Section 4.61 of DCP Online concerns planning obligations.

Better with than without

An inspector has deleted a condition requiring a noise attenuation scheme for balconies at a development of flats near a busy thoroughfare, reasoning that flats with balconies provide better living conditions than flats without balconies (DCS Number 200-008-848).

The council argued that balconies should provide an acceptable living environment where they exist. The inspector cited British Standard 8233:2014 Guidance on sound insulation and noise reduction for buildings which recognises that the guideline values are not achievable in all circumstances where development might be desirable. In higher noise areas, such as city centres or urban areas adjoining the strategic transport network, a compromise between elevated noise levels and other factors, such as the convenience of living in these locations or making efficient use of land resources to ensure development needs can be met, might be warranted. He recorded that in such a situation the guidance advises that development should be designed to achieve the lowest practicable levels in external amenity spaces. The council’s case was that this criterion had not been met.

During his site visit the inspector sat on one of the upper floor balconies, remarking that noise from the traffic in the street below was noticeable, particularly as the vehicles bumped over speed tables. However, he did not accept that the balconies were unusable for relaxation, holding that they provided a reasonable level of amenity for a central urban location near a busy railway station where a certain level of noise is to be expected. Indeed, he considered that it was precisely one of those areas where the BS indicates that compromise is required.

The inspector continued that, despite noise being above the stipulated levels, those units with balconies provided a better standard of living than those without. The development gave its occupiers the choice as to whether or not to use their external amenity space, he reasoned, noting that it also provided convenient access to public open space adjacent to the blocks as an alternative. In this regard he recorded that PPG advice is that noise impacts may be partially offset if residents have access to a relatively quiet, protected, external publically accessible amenity space that is nearby.

The inspector determined that the disputed condition was too onerous, and was neither necessary nor reasonable to secure acceptable living conditions for occupiers of the flats. There were no practical measures that could be implemented within the scope of the condition, and not requiring planning permission in their own right, that would result in a noticeable reduction in noise levels on the balconies, he judged, and concluded that the disputed condition should be removed.

Traffic noise is covered at section 4.1613 of DCP Online.

Moore on short-term letting

In upholding an enforcement notice directed at the short-term letting of a large house in Warwickshire (DCS Number 400-023-651) an inspector addressed the appellant’s claim that no material change of use had occurred.

The appellant cited the court of appeal judgment, Moore v SSCLG 2012. The inspector recorded that in that case a large house was rented out through a company for short-term holiday lets. The court found that “whether the use of a dwellinghouse for commercial letting as holiday accommodation amounts to a material change of use will be a question of fact and degree in each case, and the answer will depend upon the particular characteristics of the use as holiday accommodation. Neither of the two extreme propositions — that using a dwellinghouse for commercial holiday lettings will always amount to a material change of use, or that use of a dwellinghouse for commercial holiday lettings can never amount to a change of use — is correct.”

In the context of Moore, the inspector remarked that the question to be answered was whether the character of the use of the dwellinghouse as a private residence had been changed so substantially as to amount to a material change of use. She noted that the property could sleep up to 23 people and that it was advertised for events for up to 50 people. Thus, she reasoned, the use was not confined to what might be considered as a typical holiday leisure break for small family groups and it was clearly directed at large groups. Moreover, the evidence indicated that there was a regular pattern of bookings for the property. Based on the evidence, the inspector concluded that there was a definable change in the character of the use made of the appeal site as an events venue, which was significantly different in character compared to the lawful use as a dwellinghouse. The intensity and nature of the use for events, she decided, went well beyond that which might reasonably be expected of a lawful dwellinghouse use.

Section 9.5 of DCP Online relates to self-catering holiday accommodation.

Nailed it

In On the nail we indicated our view that nail salons and hair salons ought to be in the same Use Class.

In sanctioning the retention of a nail bar in a former retail unit in an east London district centre (DCS Number 400-023-719) the inspector said “Nail bars do not fall within the Class A1 definition of shops and hence are a sui generis use. However, hairdressers are classed as A1 and I consider nail bars to be a comparable use and equally appropriate in a shopping area.”

We think it’s time to add nail bars to the A1 Use Class.

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

Just awful

In upholding a listed building enforcement notice requiring the removal of an extraction flue at a restaurant in a north London conservation area (DCS Number 400-023-844) an inspector plainly thought the development was just awful.

“The flue, as fixed, follows a tortuous and visually damaging route across the face of the rear red brickwork to the building. It emerges, from a ground floor window opening adjacent to a metal staircase, like some form of alien and ill-designed metal box. It then extends horizontally onto a crude, supporting bracketed platform before rising vertically and inelegantly between first floor windows to a level above the eaves of the building. In my view it is perceived as an obtrusive and ‘HeathRobinsonish’ type of contraption that is totally out of place on this rear elevation.”

The inspector continued “….this awful metal addition to the building is harmful to its character and integrity; to its setting and to its features of architectural and historic interest: namely the window openings and the brickwork.” It followed, he concluded, that it was also harmful to the character and appearance of the conservation area.

That’s telling it like it is. 

There are further examples of appeals relating to accretions to listed buildings at section 27.333 of DCP Online. 

Why bother?

Conservation officers must sometimes wonder why they bother.

Presumably, the point in writing guidance relating to development in conservation areas is to encourage the use of design and materials which respect local character and to discourage the use of those which do not.

An inspector, however, has sanctioned the retention of uPVC horizontal cladding in a Lincolnshire conservation area in the face of a supplementary planning document seeking traditional materials, reasoning that there were examples of the use of similar materials nearby (DCS Number 400-023-766).

The site was within the Humberston Fitties which, the inspector noted, covers an extensive area of holiday chalets close to the Humber estuary. The Fitties had grown since the 1920s, he recorded, and most plots contained some form of single storey chalet. He acknowledged that a supplementary planning document, produced in 1997, provided advice on how improvement works to the chalets should be carried out, in order to preserve and enhance the essential character of the conservation area. He observed that there were still a number of chalets that retained their original external timber boarding and roofing, remarking that some of these had charm and unquestionably helped to define the character and significance of the conservation area. He recognised that the installation of the uPVC boarding at the appeal property did not conform to the guidance in the supplementary planning document, which advocated the use of timber boarding, and he accepted that the uPVC boarding might be different from the original appearance of the chalet. Nevertheless, he reasoned that there were other examples in close proximity where similar materials had been used. In this context he decided that the works had very little effect on the character or appearance of the conservation area.

In a Sussex conservation area, meanwhile, an inspector dealing with an appeal against the refusal of planning permission for uPVC replacement doors (DCS Number 400-023-805) took a different view:

“I noted the presence of UPVC windows and UPVC French doors within a good proportion of the wider terrace. However, no evidence has been provided to me that indicates that the other UPVC windows and French doors installed in the area have the benefit of a planning permission or otherwise. Their presence is not in itself sufficient justification to allow the replacement of the current timber French doors with new doors that… lack the refined proportions and detailing that exist in the current traditionally constructed French doors.”

Furthermore, he reported, “I have seen no reasoned justification as to why further erosion of this impressive terrace, through the loss of the existing wooden French Doors… should be allowed.” He concluded that the development would not preserve or enhance the character or appearance of the conservation area.

Here, we prefer the second inspector’s line of thinking. Otherwise, poor development breeds poor development, and the conservation officer is left thinking “Why bother?”

Section 4.3756 of DCP Online concerns alterations to unlisted buildings in conservation areas and section 4.242 concerns conservation areas decision-making.

The power of precedent

Citing an appeal decision made by the secretary of state (DCS Number 100-071-536), an appellant has convinced an inspector that there are circumstances in which development can be allowed in Flood Zone 3.

An enforcement notice had been issued requiring the use of the site in Cambridgeshire as a gypsy site to cease. The inspector dealing with the appeal (DCS Number 200-008-787) noted that the site was not in the functional floodplain but in the passive floodplain, and she also found that the sequential test had been met. However, she recorded that the site was within Flood Zone 3 as defined in the Environment Agency’s flood maps where highly vulnerable development, such as caravans, would not normally be permitted. The Exception Test, she explained, was therefore not normally relevant to such proposals.

Nevertheless, the inspector noted “the appellant has submitted an example of a case, determined by the Secretary of State, where a similar conflict occurred but where it was consequently found that failure to meet the policy on the location of development at risk of flooding was just one of a number of material considerations that needed to be weighed in the planning balance. In the case cited, the Exception Test was found to have been met as the benefits of the development were found to outweigh the presumption against it and that it would be safe for its lifetime, without increasing flood risk elsewhere. I consider that this finding consequently confirms that there can be circumstances where development in Flood Zone 3 can be permitted.”

The inspector considered that whilst there was a policy conflict with respect to the location of the site in Flood Zone 3, the actual harm caused by this would be slight, provided suitable conditions were put in place. She concluded that the benefits of the proposal were material considerations sufficient to outweigh any conflict with local and national planning policy and that planning permission for the development should be granted.

There is a section on flood risk in relation to gypsy sites at 24.539 of DCP Online.

Never the twain shall meet

A recent appeal case (DCS Number 400-023-412) reminds us that civil matters are usually best considered separately from planning matters.

In this case the inspector rejected a south Wales householder’s argument that, in the context of an ongoing boundary dispute, the four-month period given for compliance with an enforcement notice directed at an unauthorised extension was too short. One of the options for the appellant was to modify the building so that it complied with an extant planning permission. She considered, however, that scaffolding would need to be erected on the neighbours’ land and they were refusing to permit this. The inspector recognised that an application under the Access to Neighbouring Land Act 1992 had been made to the courts, hopefully to be heard in conjunction with the boundary dispute issue, but noted that the hearing date had not been confirmed.

The inspector considered these matters carefully. Ultimately, however, he did not find that the circumstances concerning the ongoing civil disputes constituted sufficient reason to increase the compliance period specified in the notice. The boundary dispute, he remarked, was a civil matter between private parties and was separate from the public interest land use planning considerations which underpinned the local planning authority’s decision to take enforcement action. He reasoned that, in any event, the appellant was required as a minimum to partly demolish the existing structure to the point where the elements remaining were authorised by the planning permission. He found no good reason why this could not be done at this juncture, whether as an interim step to further works pending the resolution of the civil boundary dispute, or otherwise. He also saw no technical reason why it could not be done without erecting scaffolding on the neighbouring land. Extending the period for compliance would further delay the council’s attempts to remedy the breach of planning control in the public interest, he concluded, and the appeal against the enforcement notice must fail.

Section 4.5362 of DCP Online concerns reduction to permitted use.