Assume: To make an ass out of u and me.
The DCP Blog was a little perturbed to find the following in a recent appeal decision relating to the refusal of planning permission for five houses in Buckinghamshire (DCS Number 400-021-979).
“The main parties disagree about whether the Council is able to demonstrate a five year supply of deliverable housing sites.”….“I am not in a position to reach a firm conclusion about whether the Council does have a five year land supply. However, not with-standing this, for the purpose of this decision I will assume that there is no five year land supply….”
While the inspector’s reasoning made no difference to the overall decision to dismiss the appeal, it does seem unwise to simply assume the lack of a five-year housing land supply, especially when the council was claiming an 11.7 year supply.
Section 9.1321 of DCP Online concerns housing land supply in rural areas.
Although the inspector in this case (DCS Number 400-021-871) was unconvinced, we thought that the idea of promoting the use of electric cars to address concerns about vehicle noise was rather innovative.
Outline planning permission for six dwellings on a backland site in Bedfordshire had been refused, in part on the grounds that the access between the flank elevations of two existing houses would result in disturbance for their occupiers. The inspector noted that “the appellant proposes to encourage future residents of the proposed development to use electric cars, in order to reduce the level of noise disturbance to existing properties through the provision of charging points for electric cars.” She reasoned, however, that “Whilst it is recognised that the use of such vehicles would be quieter in terms of engine noise, there is no guarantee that residents would choose to drive such vehicles.”
There might be some mileage in this idea if residents were obliged to use electric vehicles, though.
The amenity aspects of accesses to backland sites are discussed at section 8.1334 of DCP Online.
In Toys out of the pram we gave an account of an appeal case in which the council had refused to discharge pre-commencement conditions on the grounds that development had already commenced, notwithstanding the fact there was no dispute about the suitability of the details which had been submitted pursuant to the conditions.
Here we go again. In an appeal case in south Wales (DCS Number 400-021-886) the inspector related that “The Council contends that as the Appellant had commenced development prior to the submission and determination of the application he was in breach of the conditions, and the only option was to refuse the application.” Nevertheless, the council stated that the information illustrated on the site plan and the material samples would have been considered acceptable if works had not already commenced on site. In its statement of case it confirmed that “the Authority agrees that the details submitted would have been considered satisfactory to discharge the conditions”.
Having regard to the fact that the council had granted full planning permission for the development of the site, and that all the details submitted with the application subject to the appeal were deemed to be acceptable, the inspector considered that the council’s decision was not a pragmatic approach to take. He concluded that the details submitted with the application were acceptable and sufficient to discharge the conditions, and that the appeal should be allowed.
Time to stop this silliness now.
Information concerning the discharge of planning conditions can be found at section 4.4119 of DCP Online.
An inspector has decided to take no action on an appeal against a condition requiring a passing bay to be provided on the access to two pairs of semi-detached houses in southeast London, finding that there was no extant planning permission (DCS Number 400-021-543).
Permission had been granted for the development on 30 September 2015, subject to a standard three-year time limit condition. On 12 September 2018 the council had refused to remove the passing bay condition. Presumably, the appellant made the assumption that the submission of an appeal against the refusal would stop the clock in terms of planning legislation. Not so, however.
The inspector noted that the appeal was made against the refusal of the council to grant planning permission under section 73 of the Town and Country Planning Act 1990 for the development of land without complying with conditions subject to which a previous planning permission was granted. He recorded that Section 73(4) states: This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having been begun. The effect of this, he explained, is that once the standard time limit has passed without the permission being implemented there is no extant permission and so Section 73 does not apply. Consequently, it is not possible to remove or vary a condition attached to a lapsed permission. Furthermore, he recorded, the effect of Section 73(5) is that it is not possible to change a condition by extending the time within which development must be started. Any new planning permission created as a result of a successful appeal under Section 73 should not extend the time period within which the development must start from that set out on the original permission. Instead, the time limit should run from the date of the original permission which would not be possible in the case before him because the planning permission had lapsed.
Therefore, the inspector concluded, while the appeal had been submitted before the lapsing of the planning permission, no further action could be taken on the appeal because the planning permission to which it related had since lapsed.
Which makes the Planning Inspectorate something of a toothless tiger in this type of situation. Plainly, the duration of a permission should not be extended simply as a by-product of a planning application to remove or vary a condition, but when an appeal is made a whole new set of considerations applies. Just a suggestion, but would it be a good idea to draft a Section 73(6), to be inserted into the Act, which would stop the clock whilst such cases are under consideration at appeal?
Section 4.416 of DCP Online concerns the removal or amendment of conditions.
By contrast with the finding of the inspector in Health concerns 1, another inspector has dismissed an appeal for a block of flats near a noisy road junction in Surrey (DCS Number 200-008-320), finding that the design would “create habitable rooms that would be exposed to unacceptable noise levels and this would be extremely likely to negatively impact upon the health and welfare of occupiers.” In so doing she acknowledged council advice that “there can be hidden impacts resulting from noise upon health, such as, increased adrenaline that has of more recent times been linked with sleep loss and dementia.”
The daytime noise levels exceeded maximum thresholds set by local plan policy and thereby would result in an unacceptable adverse effect detrimental to the health and welfare of future residents, she decided.
While people can exercise the personal choice of having a late bedtime, the point the inspector has here is that the planning system ought to be providing an environment which facilitates healthy lifestyle choices.
Discussion of planning policy in relation to noise pollution can be found at section 4.161 of DCP Online.
One of the objectives of the planning system, according to Paragraph 8 of the NPPF, is “to support strong, vibrant and healthy communities.” Interesting, then, that an inspector determining an appeal against an enforcement notice directed at the change of use of a shop in Westminster to a shisha lounge (DCS Number 400-021-315) has concluded that “the development will not unduly harm public health”.
The inspector acknowledged that “Undoubtedly, smoking is not conducive to good health”, also recording that a development plan policy sought “to secure a healthy and safe environment and ensure that development maximises opportunities to contribute to health and well-being, including supporting opportunities for improved life chances and healthier lifestyle choices.” Nevertheless, and covering his ears against the noise of Westminster policy planners banging their heads against a wall, the inspector went on to reason that “There is nothing within the policy that explicitly resists uses which are unhealthy nor indeed which aims at preventing individuals from smoking.” Moreover, he continued, “smoking is a lawful activity”, ruling that the policy cannot prevent the personal choice of an individual to partake in an activity which is lawful.
The inspector concluded that the use of the property as a shisha lounge, operating within the bounds of the law, would not have an adverse effect on public health.
The point the inspector is missing here is that while planning policy cannot prevent personal choice, what it can do, and what it should do, is shape our environment to encourage healthy lifestyles.
The topic of shisha smoking is addressed at section 16.1125 of DCP Online.
Most of us know that whether or not a change of use is a material change of use is a matter of fact and degree, but why do we accept this as conventional wisdom?
The reason lies in case law, which one of our more experienced planning inspectors has used to inform his determination of an appeal against an enforcement notice alleging an unauthorised change of use (DCS Number 400-021-452). You might wish to make a note:
“Reference is made to the case of Wood v Secretary of State for the Environment 1973 (‘Wood’) where it was found that whether or not a material change of use has occurred is a matter of fact and degree. This requires an assessment to be made on a case-by-case basis of the nature, pattern and intensity of the activities being carried out. The case of Palser v Grinling 1948 is also referred to whereby a material change means ‘considerable, solid, big’ as opposed to ‘insubstantial or de minimis’.”
Section 4.321 of DCP Online concerns the materiality test.
An inspector has deleted a condition restricting the occupancy of a barn conversion in the Yorkshire Dales to a person who “in the opinion of the Local Planning Authority” satisfied an identified local housing need, ruling it to be imprecise (DCS Number 400-021-404).
The inspector acknowledged that there was a ‘note to the applicant’ at the end of the decision notice which set out categories of need which would be taken into account when assessing demand for affordable housing. However, she pointed out that, as stated in the Planning Practice Guidance, informative notes do not carry any legal weight and cannot be used in lieu of planning conditions or a legal obligation to try and ensure adequate means of control for planning purposes. In the absence of a definition of local housing need she ruled that because of its subjectivity the condition was not precise.
There is further information concerning local occupancy conditions at sections 10.3411 and 9.1411 of DCP Online.
Prior approval for a rear extension to a house in Kent has been granted by an inspector despite the council’s claim that the extent of earthmoving required would require planning permission (DCS Number 400-021-280).
This is one of those areas of planning where a search for a specified threshold in policy or legislation is unlikely to prove fruitful, so you might wish to make a record of these helpful lines from the inspector. In order to implement the enlargement of the property the appellant identified that some 16.5 cubic metres of earth would need to be removed, the inspector noted. The council asserted that the proposal would require a “significant amount of excavation, engineering work to level the ground for the proposed extension” and therefore the removal of the earth would fall within the definition of development as specified in section 55(1) of the Town and Country Planning Act 1990 (the 1990 Act). Consequently, the council took the view that the works were not permitted under the GPDO and therefore the scheme would require planning permission.
The inspector recognised that the activity would involve the removal of earth, but observed that the rear garden was not raised by a significant amount, and part of the extension would be set within the existing patio. She was satisfied that the level of earth to be removed would not be of a scale that it could be characterised as a separate activity falling within the remit of an engineering operation on its own merits. Therefore, she reasoned, if the works involved in removing the earth from the garden would not be of a character that could be described as an independent engineering operation, they would as a matter of fact and degree be ancillary to the construction of the extension. In reaching this conclusion she had regard to Wycombe DC v SSE  and Eatherley v Camden LBC . Whilst the facts of the case before her were different, the approach of the court confirmed that the decision-maker should have regard to the works being carried out, and whether or not they would be of a scale that would in itself require planning permission. To her mind, the works involved in the removal of earth within the rear garden would simply be akin to those involved in the preparation of foundations for the extension. Accordingly, she found that the application was for development that would be permitted under Schedule 2, Part 1, Paragraph A.4 of the GPDO.
Another appeal example (DCS Number 100-077-461) where this issue has been debated can be found at section 4.3131 of DCP Online.
The redevelopment of a house in a southwest London conservation area with a replica building to provide two five-storey dwellings has been rejected, an inspector being unconvinced that the proposal would achieve a satisfactory outcome (DCS Number 400-021-231).
The inspector acknowledged that there was an extant permission for conversion of the building into two houses. The permitted scheme was essentially the same design as the proposal before him, other than that the demolition of the existing building was now proposed rather than its conversion and alteration. He observed that the building was a substantial detached property dating originally from the mid to late nineteenth century which retained much of its traditional character.
NPPF paragraph 184 explains that heritage assets are an irreplaceable resource, the inspector recorded. Significantly, he reasoned that an irreplaceable resource cannot be preserved by copying it. That involves artifice, he opined, rather than maintaining integrity. He accepted the appellant’s sincerity in seeking to produce a replica of the building but considered that it would be highly challenging to reflect the subtlety of the architectural detailing present, or the patina that the property had developed over time.
The inspector was not satisfied that the construction of a replica would have little visual effect. Whilst the resultant changes to the nature of the property might not appear substantial at a superficial level, they would nonetheless fail to preserve local character and appearance and the historic significance of the building, he concluded.
Other examples of appeals in which this issue has been addressed can be found in Section 27.137 of DCP Online.