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No dope

In contesting the refusal of prior approval for a residential barn conversion in Somerset the appellant made a somewhat ill-judged claim regarding the former use of the building (DCS Number 400-032-919).

The inspector recorded that ‘There is reference to a possible illegal propagation operation taking place at the site, which it is contended comprised an agricultural use.’ He reasoned, however, that if indeed such an activity was taking place and was in fact illegal, it could not be taken to demonstrate or contribute to any lawful use of the building.

The inspector determined, on the balance of evidence, that on the relevant date a mixed use comprising of both agricultural and equestrian uses subsisted. Accordingly, the building was not solely in agricultural use on the relevant date. Thus, the proposal was not permitted development under Part 3, Class Q of the GPDO. 

No dope, this inspector. 

Further information on Class Q can be found at section 10.114 of DCP Online.

Last orders

Everyone knows that times are hard for rural pubs and that they are closing at a pace. Nonetheless, an inspector has ordered that a canvas-sided pergola at a pub in the Hertfordshire green belt should be removed despite the appellant’s plea for flexibility (DCS Number 400-032-356).

The inspector determined that the structure was inappropriate development in the green belt and that it had reduced openness. In addition, he found that the development was not of a high standard of design quality that was in keeping with the traditional character of the property. 

The inspector recognised that the effects the Covid-19 pandemic have had on the hospitality trade are well documented. He understood that social-distancing requirements had reduced the number of table covers by about half at the pub and was sympathetic to the general economic difficulties the appellant’s business might have encountered as a result. He therefore acknowledged that the canvas sides to the pergola might have helped create greater flexibility to help with the ongoing viability of the rural business and help the appellant continue to employ local staff. Nevertheless, he recorded that he had not been provided with any substantive evidence about how the business operated and how it had been affected. Further, he pointed out that the covered pergola was already being used before the pandemic and the first lockdown in March 2020. 

The inspector found that there was no clear indication as to when or if ‘normality’ would return and how long various social-distancing measures would be encouraged or imposed. The after-effect on the hospitality trade and society’s habits in general are also unknown, he continued. He did wonder whether to grant a temporary permission until the economic situation improved, but found that it was too indefinite. In any event, he reasoned that the development would still be physically present and continue to cause harm to the green belt and the character and appearance of the area.

That might be so but we do hope this is not last orders for the pub.

There is a section on external covered areas at pubs at 16.7326 of DCP Online. 

Silence is golden

An inspector has granted prior approval under Part 3, Class R of the GPDO for change of use to a storage and distribution use in Staffordshire notwithstanding the council’s protest that only the bases of the barns remained (DCS Number 400-032-422).

The appeal site contained three large concrete pads, the inspector observed. Article 2(1) of the GPDO, he recorded, sets out its interpretation of a ‘building’: A building is any structure or erection and any part of a building other than; plant, machinery, gates, fences, walls or other means of enclosure. Given that the pads once formed the bases of buildings, he reasoned, each was part of a building. While the rest of the structures had been removed, he found no reason to consider that the pads were no longer part of a building. In particular, he recorded that both Article 2(1) and Class R of the GPDO are silent as to any requirement for the whole building to still be present. As such, he determined, they benefited from the permitted development rights set out within the Class.

Did someone forget to add Class R to the exceptions listed in Article 2(1)(a) which exclude part of a building? 

Section 4.3423 covers Part 3 of the GPDO.

The same but different

In determining a certificate of lawfulness appeal concerning caravans at a Norfolk leisure park (DCS Number 400-032-675) an inspector raised the question as to whether both touring caravans and static caravans can be regarded as the same in legal terms. The site already benefited from planning permission and a certificate of lawfulness allowing touring caravans to remain on the site permanently without ever being moved, and the appellant wished to establish that permanent occupation of static caravans would be similarly lawful. 

The inspector firstly set out the relevant legislation: 

‘S.29(1) of the Caravan Sites and Control of Development Act 1960 as amended sets out that a caravan means any structure designed or adapted for human habitation which is capable of being moved from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer) and any motor vehicle so designed or adapted. S.13(1) of The Caravan Sites Act 1968 as amended (the 1968 Act) defines a twin-unit caravan as a structure designed or adapted for human habitation which is, (a) composed of not more than two sections separately constructed and designed to be assembled on a site by means of bolts, clamps or other devices; and (b), when assembled it is physically capable of being moved by road from one place to another.’

Accordingly, the inspector recognised that no distinction is made between caravans that can be used for touring and caravans that may normally remain on sites but are capable of being moved. In this context he considered that static caravans would come within the statutory definitions. Nevertheless, ‘…might there be some other differentiation in planning terms?’ he asked. In his view, whether a caravan is a static residential unit or a touring caravan can reasonably be discerned through inspection and observation of their physical characteristics. To his mind the most significant possible differences between the two types relate to size and the manner of use. Touring caravans, he reasoned, are typically towed by car and of a size that can be moved without causing any difficulties in terms of public highway interests. A large touring caravan with say five or six berths would probably be no more than about 2.5 metres wide, about 8 metres long, with an overall height of perhaps 2.7 metres. This compared with the significantly larger maximum size of a twin unit caravan, defined in s.13(2) of the 1968 Act as 20 metres long, 6.8 metres wide and 3.05 metres high, and many times greater than is likely for a large touring caravan. Such a caravan is moveable, the inspector acknowledged, but this is usually done on a low trailer towed by a tractor or lorry and might well require an escort on the public highway.

Overall, the inspector considered that the potential differences between static caravans of larger sizes and touring caravans are, as a matter of fact and degree, of such significance that they should be regarded as different entities, and that the existing planning permissions and LDC for the site did not encompass the siting of large static caravans such as could be the case on the site if the appeal were allowed.

The inspector considered that the introduction of static caravans for permanent occupation would be likely to result in a change in character which might well amount to a material change of use requiring an application for planning permission. In this light he considered that the use of the site was limited by the planning permission to the siting of touring caravans. It followed that the council’s decision to refuse the grant of a LDC was well-founded.

Section 24 of DCP Online covers caravans and chalets.

Spoonfeeding

In dealing with a costs application associated with a Class Q barn conversion appeal in west Gloucestershire an inspector has made an interesting remark regarding the role of the applicant (DCS Number 400-032-738):

‘Neither do I agree that the Council has been dilatory in providing information to the applicant. The Council uploads information and consultation responses onto their website on a regular basis. A busy local planning authority cannot possibly spoon-feed applicants and it is incumbent upon applicants to access the Council’s website in order to obtain information that is publicly available.’

In the context of news reports of the appalling behaviour that planning officers have been subjected to of late – ranging from name-calling through foul language to chair-hurling – it’s rather nice to see an inspector putting an unreasonable applicant firmly in his place. 

Section 6.1 of DCP Online concerns costs awards.

A lasting impression

An inspector has quashed an enforcement notice which required the removal of a building constructed in 2017 from a golf course complex in Staffordshire, finding that it was a temporary structure permitted under Part 4 Class A of the GPDO (DCS Number 200-010-333).

The appeal building was a steel portal-framed, single span workshop and office. It had concrete floors, was clad in metal sheeting and measured 18m by 19.5m. In considering the council’s claim that it was a permanent building the inspector quoted the judge in R (oao Wilsdon) v FSS & Tewkesbury BC [2006]:

‘Whilst of course it is possible that a landowner would wish to erect a permanent building to serve a temporary purpose, as a matter of common sense, absent any other explanation, the larger and more permanent the building in question the less likely it is to be genuinely “required temporarily” in connection with the carrying out of development on the land or on adjoining land. Common sense has some role to play in planning control and the proposition that a permanent building may fall within Class A in Part 4, whilst in principle correct, raises the obvious question: why would anyone go to the time, trouble and expense of erecting a permanent structure if it is required only temporarily? In any particular case there may be a sensible explanation but it would be necessary to look at the facts of each case to see whether or not such an explanation had been provided. It is not unreasonable to adopt, as a starting point, the proposition that a landowner will not usually erect a permanent building if it is merely required temporarily. Similarly, the length of time taken to construct the building and the length of time that it has been and is likely to be in situ must also be relevant considerations.’

The inspector noted that in the case before her the appellant had significant resources and could therefore absorb the costs of providing the building for a temporary period and then removing or relocating it. Further, the golf course development was a large and complicated project, and she therefore found it unsurprising that it had been ongoing for a number of years, especially given the impact of the Covid-19 pandemic. 

The inspector found it more likely than not that the appeal building was, when it was erected, when the enforcement notice was issued, and currently, being used principally in connection with operations associated with the construction of the adjoining golf course complex. As such, it was permitted development under Part 4, she concluded.

Section 4.3424 of DCP Online provides detailed information relating to temporary buildings permitted under Part 4.

Front of house

The change of use of a gym in Leeds to a function room has been rejected at appeal after an inspector found that the lack of level access would not be acceptable in terms of accessibility (DCS Number 400-032-398).

The inspector observed that the venue occupied the first floor of a building, accessed via stairs from both the front and rear of the property. Due to its position on the first floor, he considered that the multi-functional room would be difficult to access for some if they were to find using what was a reasonably narrow flight of stairs problematic. 

Although not detailed on the plans, the inspector saw that domestic-style stairlifts had been installed to the rear service staircase. He reasoned, however, that use of these stairlifts would involve the user being segregated from the primary front entrance and having to traverse to the rear of the premises via a road where there were limited footways. Access would then have to be taken via a narrow ledge past a bin storage area to the rear service door which did not appear to have level access. 

The inspector considered that it would not be a pleasant or easy way to arrive at the premises and in many respects would be rather undignified for a visitor. It would not provide easy access for those who could not use the stairs and due to its characteristics, it would not be inclusive. He concluded that the lack of level access resulted in a proposal that would have poor levels of accessibility and which would conflict with development plan policy which required development that was accessible to all users.

There is a section on Access for all at 4.1543 of DCP Online.

Trigger’s broom or the Ship of Theseus paradox

Fans of ‘Only Fools and Horses’ might remember the sketch when Trigger, the road sweeper, claims to have used the same broom for 20 years….even though it has had 17 new heads and 14 new handles. Also known as the Ship of Theseus paradox – Plutarch asked whether a wooden ship which has had every single piece of wood replaced was still the same ship – this is a question which has perplexed thinkers over the centuries and was before a planning inspector in a recent appeal (DCS Number 400-032-464).

The appeal concerned the refusal of prior approval for residential conversion of a barn under Class Q of the GPDO. The main issue was whether the building was in situ on 20 March 2013 (the relevant date). The appellant asserted that “the original structure of the building exists and it is felt that the building is still classed as original.” 

The inspector, however, remarked that whilst it is not unusual for agricultural buildings to be repaired over time the works that had been undertaken were recent and very extensive. He found that in all likelihood the concrete block walls, roof and steel frame had all been constructed within the previous few years. Other than the corrugated metal sheeting on the walls, which he considered might have been on the original building, he observed that the building appeared to be a different one from that shown in the submitted aerial photographs dating from 1979, 1983 and “1985 onwards”. Furthermore, the roof pitch of the building appeared steeper than the roof pitch of the original building, he noted, and its footprint appeared to be slightly smaller than the footprint of the building shown in the photographs. He concurred with the council’s assessment that the building that existed on the site was not the original building. 

The inspector determined that there was insufficient information to demonstrate that the relevant GPDO conditions, limitations and restrictions had been met and concluded that the proposal did not comprise permitted development. The appeal was dismissed.

Further information on Class Q can be found at section 10.114 of DCP Online.

Off the peg

An inspector has refused the redevelopment of a house in a suburban village in Surrey with two dwellings (DCS Number 400-032-382), on the grounds that the site required an individualistic approach.

The inspector judged that two dwellings of an appropriate size and design had the potential to be accommodated without causing harm to the character and appearance of the area. Nevertheless, he found that the mirror image design, in a locality characterised by a predominance of individuality of dwelling siting and appearance, was a major drawback of the appeal proposal. While he found the proposed design in itself acceptable he considered that its replication in handed form for both dwellings would be too akin to a formulaic approach to design and house type as adopted by volume builders. This concept, he remarked, was frequently used in estate development, albeit in the case before him it would be with upmarket buildings. However, he considered that the handed pair would draw the eye and be perceived as harmfully inappropriate in a locality, which even outside the nearby Residential Area of Special Character, had the difference in the design and appearance of each dwelling as one of its major character assets.

The inspector determined that the proposal, due to its homogeneity in design, would be in conflict with the development plan, the council’s Local Distinctiveness Guide and the NPPF.

The scope of design control is covered at section 4.132 of DCP Online.

Open textured

An inspector has deleted a condition specifying that the demolition of a locomotive shed and its replacement with two houses in Cheshire should be carried out in total accordance with the drawings, finding no harm to the openness of the green belt through a proposed increase in height of the garages (DCS Number 400-032-263).

The inspector recorded that openness is capable of having both spatial and visual aspects. He then gave regard to various High Court judgments: Euro Garages Ltd v SSCLG & Anor [2018]; Samuel Smith Old Brewery (Tadcaster), Oxton Farm v North Yorkshire CC & Darrington Quarries Ltd [2018]; and Samuel Smith Old Brewery (Tadcaster) and others) (Respondents) v North Yorkshire County Council [2020]. He explained that, in summary, these judgments highlight that, rather than treating any change as having a greater impact on the openness of the green belt, the correct approach is to consider the impact or harm, if any, wrought by the change. Whether or not any change will have an adverse impact, he continued, and so cause harm to openness, might depend on factors such as the scale of the development, its locational context, and its spatial and/or visual implications. The word openness is open textured and a number of factors are capable of being relevant when it comes to applying it to the particular facts of a specific case but how to take account of the visual effects is a matter of planning judgement rather than one of legal principle.

Turning to the case before him, the inspector noted that although the proposal did not increase the footprint of the garages, it would result in them having a greater volume than the approved garages due to the increase in height. However, the increase in height and volume would not be substantial. Furthermore, the increased height of the garages would not be conspicuous from the lane as a result of the existing built development within the surrounding area, siting of the new dwellings, new planting, existing vegetation, setback from the highway and, that the garages would appear modest compared to the size of the dwellings. 

Given the scale of the proposal and the context of the site, the inspector determined that the scheme would not have a detrimental effect or have a materially greater impact on the openness of the green belt than that approved. As such, the proposal would not conflict with the fundamental aim of green belt policy to keep land permanently open. He concluded that the development would therefore preserve the openness of the green belt and would not conflict with the purposes of including land within it. 

This topic has also been covered in an earlier blog post Shape shifting and further information on green belt policy can be found in section 4.251 of DCP Online.