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All at sea

A couple of recent appeal decisions relating to shipping containers result in confusing guidance.

In the first case (DCS Number 400-027-058), the inspector refused to issue a certificate of lawfulness for a shipping container in Dorset, deeming its siting to be a use of land and therefore not immune from enforcement because it had been there for less than ten years. The inspector reasoned that the case turned on whether the container was a ‘building’ and therefore operational development as defined by section 55 of the Act. He explained that if it was a ‘building’ it was only necessary to prove, on the balance of probabilities, that it had been there for four years from the date of the application, the statutory time limit as set out in section 171B (1) of the Act. If it was not deemed to be a ‘building’ it was necessary to demonstrate, on the balance of probabilities, that it had been on the site for ten years from the date of the application, as set out in section 171B (3) of the Act.

Well established case law, the inspector continued, has established three principles for determining if something is a ‘building’ – size, degree of permanence and physical attachment. He observed that the container was an oblong structure with a rigid metal frame and insulated walls of the sort that generally provides a refrigerated storage facility.  The appellant  acknowledged that it was delivered and positioned on the site by specialist equipment and not constructed on the site. The inspector noted that it was not attached to the ground by any foundations or to any services such as water, drainage or electricity, and it could be lifted up and removed from the site by similar specialist equipment. It was a container, he ruled, not a ‘building’. Its location on the site was therefore a use rather than operational development as defined by section 55. As the container had been in situ less than ten years from the 2018 date of the application its siting was not lawful, he concluded.

Meanwhile in Essex, (DCS Number 400-027-061), an inspector dealing with an appeal against the refusal of planning permission for four containers for mixed storage related that a ‘building’ is defined in the Act as “any structure or erection”. By this definition, he determined, the containers would be ‘buildings’ and the proposal was thus for operational development. The containers would be substantial and weighty structures, he noted, finding it clear by the fact that a planning application had been made for a specific siting that they were intended to be permanent features. The proposed containers would therefore be new buildings amounting to inappropriate development in the green belt.

Further appeal examples relating to containers (in which inspectors have come to similarly differing conclusions about their planning status) can be found at section 21.3151 of DCP Online.

Excepting the exceptional

Despite being larger in scale than the existing dwelling a replacement dwelling has been allowed in rural north Wales, an inspector finding it to be of exceptional design (DCS Number 400-027-021).

Development plan policy, the inspector recorded, included the following:

“Outside development boundaries, the siting and design of the total new development should be of a similar scale and size and should not create a visual impact significantly greater than the existing dwelling in order that it can be satisfactorily absorbed or integrated into the landscape. In exceptional circumstances a larger well designed dwelling that does not lead to a significant greater visual impact could be supported”.

The inspector noted that although the replacement dwelling would be broadly on the same footprint as that existing, it would be of a larger scale and a different design. He found, however, that despite being larger the proposal was a high quality design that due to its exceptional form, appearance and use of materials, and its location relative to other development and local topography, would not lead to a significantly greater visual impact and would be satisfactorily absorbed into the locality. Its scale and size would therefore be appropriate for the area. On this basis he found that the proposal satisfied the overall policy requirements.

There already exists the scope, of course, where development plan policy demands that a replacement dwelling should be much the same size as that to be replaced, to decide that exceptional design quality constitutes a material consideration sufficient to determine the application or appeal other than in accordance with the development plan. Nevertheless, it would be good to see policy of this type, which encourages exceptional design, more widely adopted.

Section 9.631 of DCP Online concerns replacement dwellings in the rural area.

The other rear elevation

In determining an appeal against the refusal of a lawful development certificate for a rear extension to a mid terrace house in south London an inspector has found that the council misinterpreted Paragraph A.1(f)(i) in Schedule 2 Part 1 Class A of the GPDO (DCS Number 400-026-137).

The council had refused to grant the certificate on the grounds that the proposal would result in an extension which extended more than 3 metres beyond the rear elevation of the original dwellinghouse. The dwelling had a single storey rear lean-to which was built up to the boundary with the adjoining dwelling and extended part way across the rear elevation of the main part of the house. There was no dispute between the parties that the lean-to was part of the original building. The inspector pointed out that for the purposes of the GPDO, a house can have more than one rear elevation, as illustrated at page 19 of the Technical Guidance (Permitted development rights for householders – Technical Guidance MHCLG 2019).

In the case before him the original rear of the dwellinghouse was stepped in plan, the inspector observed, and the extension would be similarly stepped, such that no part of the extension would extend more than 3 metres from the rear elevation directly behind it. It was clear to him that the council had interpreted limitation A.1(f)(i) as meaning that no part of the extension can extend more than 3 metres from any rear elevation to which it is attached. He reasoned, however, that the limitation can also be interpreted as meaning that the enlarged part of the dwellinghouse should not extend more than 3 metres from the corresponding rear elevation, being that directly behind it. He considered that this is the more purposive interpretation, and accordingly he determined that the extension would comply with limitation A.1(f)(i).

Section 4.3421 of DCP Online concerns GPDO Schedule 2, Part 1 Development within the curtilage of a dwellinghouse.

Detective work

Some detective work has resulted in a planning inspector deciding that an extension to a house in Derbyshire would not be inappropriate development in the green belt (DCS Number 400-026-608).

The inspector recorded that Paragraph 145 of the Framework sets out a small number of exceptions to inappropriate development in the green belt. One such exception is the extension or alteration of a building, provided that it does not result in disproportionate additions over and above the size of the original building. Local plan policy, he noted, was broadly consistent with the Framework.

The council considered that, in most cases, an extension resulting in more than a 30 per cent increase in footprint and volume, compared to the original building, would be disproportionate. The dispute between the main parties concerned how much the building on the site had increased from its original size.

The inspector found no conclusive evidence on the ground that the cottage was originally joined to existing outbuildings. Nevertheless, he agreed that the OS 25-inch 1892-1914 map indicated that this had been so, showing an L-shaped building footprint joined to what was now approximately the main body of the cottage. The OS six-inch England and Wales 1842-1952 map and 1940s-1960s National Grid maps showed similar footprints.

Judging by the totality of historical map and existing layout plan evidence before him, he considered that the size of the footprint of the original building as a whole, including buildings joined to the main dwelling core as it stood on 1 July 1948, was in the region of no less than 170 sq.m. He also calculated that, even if an apparently demolished rectangular building which originally adjoined the current main body of the cottage was single storey, the volume of the original building was in the region of no less than 850 cu.m.

The inspector found that the proposal, for additional bathroom space with a shower, would not entail an increase in the size of footprint of the building, over and above that of the original, and would result in a combined increase in building volume of less than ten per cent over and above the original. Taking this together, he found that the proposal would not result in a disproportionate addition to the original building, and so would meet the exception test in paragraph 145c) of the Framework. Consequently, the proposal would not amount to inappropriate development in the green belt.

Information concerning house extensions in green belts can be found at section 12.632 of DCP Online.

Overly cautious

An inspector has deleted a condition withdrawing permitted development rights from a new house in the green belt in Essex, pointing out that the GPDO does not differentiate between green belt land and land elsewhere (DCS Number 400-026-655).

The disputed condition stated that notwithstanding the provisions of the GPDO, the dwelling should not be extended or enlarged in any way without the prior grant of planning permission by the local planning authority. The reason given for the condition was to prevent the creation of a dwelling of disproportionate size that would conflict with the policies of restraint in the green belt.

The inspector related that the PPG states that conditions restricting the future use of permitted development rights may not pass the tests of reasonableness and necessity, and the NPPF indicates that planning conditions should not be used to restrict national permitted development rights unless there is clear justification to do so. The council maintained that the condition was necessary to prevent the erection of disproportionate extensions to the existing dwelling, suggesting that the cumulative effect of the extensions afforded via the permitted development process could add up to approximately 80 per cent additional volume to the dwelling. The council contended that this would represent inappropriate development in the green belt and would be detrimental to its openness.

The council asserted that it was not unusual or unreasonable practice to withdraw permitted development rights on approved dwellings in the green belt, but the inspector found that, in the case before him, it would be overly cautious and restrictive. He pointed out that green belt policy does not require proposals that would be permitted development to be assessed against whether they are inappropriate or not, nor is it necessary to assess their impact on openness. Also, the GPDO does not impose any specific restrictions on land in the green belt.

The inspector saw no justification for withdrawing permitted development rights solely on the basis of the potential impact on the green belt. In addition, he reasoned that, due to the small size of the dwelling, any development that fell within permitted development tolerances would also be modest in size and any larger development that was of a scale or nature not to fall within permitted development rights would be subject to assessment under planning policy.

The inspector concluded that any impact on the green belt would not amount to sufficient justification to warrant withholding Class A permitted development rights. He found that the disputed planning condition was unnecessary and conflicted with paragraph 55 of the NPPF which seeks to ensure that planning conditions are only imposed where they are necessary and reasonable.

Section 4.4261 of DCP Online covers the curtailment of the later exercise of planning rights.

A real prospect

In determining an appeal against an enforcement notice directed at an outbuilding in the back garden of a house in Surrey an inspector has set out some useful information relating to the consideration of a fallback situation (DCS Number 400-026-675).

The appellant claimed that a potential fallback position existed under the GPDO. The inspector noted, however, that he had not advanced any definitive articulated scheme that would fall within the necessary parameters. Disputing the need for any alternative scheme to be advanced, the appellant cited the case of Mansell v Tonbridge & Malling BC [2017]. In this case, the inspector recorded, the judge confirmed that the legal considerations in determining the materiality of a fallback position as a planning judgement related to the basic principle that for a prospect to be a “real prospect” it does not have to be probable or likely; instead, a possibility will suffice. The judge also mentioned, however, the inspector continued, that in some cases a degree of clarity and commitment may be necessary, and this will always be a matter for the decision-maker’s planning judgement relating to the particular circumstances of the case in hand.

The inspector considered that the current appeal was a case in point and, had the deemed planning application not been successful, he would have expected that an alternative scheme would have been prepared and advanced for assessment as to whether it would fall within the parameters of Schedule 2, Part 1, Class E of the GPDO.

Section 12.8 of DCP Online covers garden buildings and structures.

Health and safety gone mad?

Some 650 metres of quayside railing at a grade II* listed maritime harbour has been approved on appeal at Ramsgate Royal Harbour (DCS Number 400-026-547).

What do you think, is this health and safety gone mad, or is this a prudent undertaking by a responsible local authority? There are no doubt all kinds of rules and regulations concerning public safety, of which planning bloggers might well be unaware, but it seems to us here that the railings will significantly diminish the visual understanding of the operation and historic function of the harbour.

Nonetheless, the appellant pointed out that the harbour is a publicly accessible space which is used by pedestrians and motor traffic, the inspector recorded, and he saw that beyond the location of the proposed railings towards the water there was a sizeable drop off the edges in many places. Moreover, the appellant had submitted examples of where health and safety issues had arisen over the previous few years, owing in part to the lack of barriers in the places sought. In this respect, the inspector reasoned that the erection of the railings would provide a substantial public benefit that would significantly reduce the potential of accidents for vehicles, cyclists or pedestrians using the harbour. He concluded that whilst the proposal would fail to preserve the special interest of the grade II* listed building and therefore result in less than substantial harm, the manifest and significant public benefits outweighed the harm in this case.

We are wondering why people can’t just look where they’re going.

There is a section on accretions to listed buildings at 27.333 of DCP Online.

A forlorn hope

The residential conversion of a vacant shop on the high street of a Gloucestershire market town has been allowed, an inspector judging that a return to retail use was a forlorn hope (DCS Number 400-026-563).

The inspector considered that conflict with development plan policy weighed heavily against granting planning permission. Nevertheless, he recorded that the National Planning Policy Framework sets out that  town centres should be allowed to grow and diversify in a way that can respond to rapid changes in the retail industry and allow a suitable mix of uses, including housing.

The inspector noted that the premises were last used for retail purposes in 2017. A lengthy period of time had therefore elapsed since they had made any meaningful contribution to the local economy and the vitality of the town centre. In addition, the appellant stated that the premises were no longer suitable for retail purposes due to the prohibitive cost of retrofitting the listed building for modern retail use and for obtaining the minimum energy performance certificate. The inspector recognised that the internal arrangement of the premises, its heritage interest, the limited floorspace and the steps leading up from the footway to the entrance were all constraints that were likely to deter any potential retailers from occupying the building.

Whilst the planning authority was critical that no marketing details had been submitted, the inspector noted that there was no suggestion that the premises had been deliberately left vacant for the purposes of securing residential use, and there was no evidence to demonstrate that the cessation of retail use from the site had had any significant adverse impact upon the vitality of the town centre or the local economy. Moreover, he continued, since the application was made there had been a material change in circumstances following the COVID-19 pandemic. This has had a major impact upon the economy and retail activity, including a significant increase in on-line shopping.

The inspector reasoned that whilst there will almost certainly be an economic recovery, the future for town centre retailing is very far from clear. Given the above-noted constraints and the length of time that had elapsed since the premises were last used for retail purposes, he considered that a re-use of the building for retail purposes appeared to be a rather forlorn hope. He held that the proposal would avoid the premises remaining empty for a further indefinite period of time, and the occupiers of the dwelling would almost certainly support retail businesses within the town centre and help support the local economy. He found that there was greater force in the appellant’s argument that the proposal would not harm the vitality of the town centre.

The inspector concluded overall that the proposal would be unlikely to harm the vitality of the town centre or the local economy.

Section 10.3312 of DCP Online covers the subject of the loss of shops to residential use.

Whose side are you on?

How would you decide which planning approval notice was the authorised version if there were two different versions in existence, both appearing to be legitimate?

This was the question facing an inspector in a recent appeal against the refusal of a certificate of lawfulness for the occupation of a staff dwelling at a caravan park on Dartmoor without complying with a condition restricting occupancy (DCS Number 200-009-504).

The inspector recorded that the appellant and the planning authority both held copies of a planning permission dating from 1986, granted for the conversion of a barn to a dwelling. The copy held by the planning authority had five conditions attached, one of which limited the dwelling to use as accommodation for a manager or staff employed at the caravan park and their dependents. However, the copy held by the appellant had only four conditions attached; the condition restricting the occupancy of the dwelling was not present.

The planning authority’s refusal notice indicated that its refusal to grant a LDC was based primarily on its conclusion that there was insufficient information to show that the 1986 permission was not subject to a condition restricting occupancy. At the inquiry, however, it clarified that it did not take issue with the legitimacy of the copy of the 1986 permission held by the appellant: rather, it acknowledged that there were in existence two copies of that permission, one with an occupancy condition and one without, both of which appeared on their faces to be entirely regular. At the start of the inquiry the position taken by the planning authority was that it was simply not possible to know which of the two versions of the 1986 permission was the authorised version, but having reviewed that position, it withdrew its objection to the grant of the LDC. This was on the basis that while it might have been possible that one of the two versions of the grant of permission had been issued without the proper authority it was not possible to establish which, and in any event, the “unauthorised” version would not necessarily be a nullity. In its closing submissions, the planning authority invited the inspector to allow the appeal.

The inspector remarked that the circumstances of the case were unusual. Neither party was able to provide any further information to shed any light on how the existence of two different versions of the same permission had come about. It was of course possible to speculate, she observed, but in the absence of any further evidence at all, it was not possible to conclude that any one possible explanation was more or less likely than any other.

There are two sides to every story but in the end the inspector reasoned that there was no evidence that the version of the 1986 permission which did not contain a condition restricting occupancy was in any way invalid, or that it should be regarded as anything less than a full and operative grant of conditional permission. That being the case, no enforcement action could be taken against the use of the barn as an unrestricted dwellinghouse, and it followed that such use must be lawful. She determined that the appeal should succeed.

There is a section on occupancy conditions at 4.4262 of DCP Online.

Upshifting

Tight site and the council is demanding bike storage? Have a look at this appeal case (DCS Number 400-026-507).

The case concerns a planning condition which required secure cycle parking for a minimum of two cycles for each flat at a site in south London. The council’s concerns, the inspector reported, related to the accessibility of the cycle storage at first floor, which would require the transport of bicycles up a flight of stairs, the type of storage, and that it would require vertical lifting of the bicycle into the unit.

Although the cycle stores were not accessed from outside the building the inspector was satisfied that the proposed individual lockers would be inclusive, secure, safe, and robust. She also reasoned that, although bikes would need to be lifted into their storage place, prospective occupiers of the development would be aware of the facility and any associated limitations, before choosing to live within the property as well as the accessibility to the storage bays at first floor level.

There is a section on planning conditions at flat developments at 7.44 of DCP Online.