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Not a beauty contest

An inspector, dealing with an appeal against the refusal of planning permission for a house in south-east London, has explained in plain terms that he was not prepared to judge between two different amended schemes (DCS Number 400-036-641). 

The appellants had put forward two alternative sets of amended plans as part of their appeal submission. The inspector noted that these were intended to address the council’s concerns about outlook and were presented as Options A and B.

In deciding whether or not to accept the revised plans, the inspector gave consideration to the “Wheatcroft Principles” (Bernard Wheatcroft Ltd v SSE [1982]) and whether any prejudice would occur. He was satisfied that, as the changes put forward in both alternative sets of drawings were relatively minor and did not change the overall nature of the scheme, no parties would be prejudiced by his accepting the plans. He explained, however, that in determining an appeal, it was not for him to judge a beauty contest between alternative versions of a scheme put forward by the appellants. Accordingly, he determined the appeal based on the Option B drawings, for the simple reason that they had the highest revision letters and, therefore, presumably could be taken as representing the most recent expressions of the appellants’ intentions. He did not take the Option A drawings into consideration. 

Further information about Wheatcroft can be found in section 5.35 of DCP Online.

It’s not ten

In dealing with an appeal against the refusal of a certificate of lawfulness for the residential occupation of a barn in the garden of a Kent dwelling in breach of a planning condition, an inspector has usefully set out the legislation in such situations (DCS Number 400-036-533).

The inspector recorded that Section 191(2) of the Act states that uses are lawful at any time if: (a) no enforcement action may be taken in respect of them, including if the time for enforcement action has expired; and, (b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force. Section 171B sets out the relevant time limits for enforcement action. Section 171B(1) sets out the time limit for operational development as four years; Section 171B(2) sets out that, where there has been a change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after a period of four years beginning with the date of the breach. Section 171B(3) states that in the case of any other breach of planning control, no enforcement action may be taken after the end of a period of ten years beginning with the date of the breach.

The inspector noted that a condition on the planning permission for the barn stated that the building permitted should not be occupied at any time for residential purposes, but should only be used for agricultural storage and a workshop in association with the host property. Therefore, the inspector explained, use of the barn as a residential dwelling would be a breach of planning control under Section 171B of the Act both as development without planning permission (a material change of use from barn to residential dwelling) and as a failure to comply with a condition attached to a planning permission. 

The LDC application sought to confirm that the use of the barn as a residential dwelling was lawful on the basis that the time for taking enforcement action had expired. The inspector further explained that whilst ordinarily a breach of planning control comprising a failure to comply with a condition on a permission would fall within the ten-year time period set out in Section 171B(3), it was held in FSS v Arun DC & Brown [2006] that the four-year limit in Section 171B(2) applies where a building is being used as dwellinghouse in breach of a condition which serves to prevent that use. As a result, regardless of whether the breach amounted to a material change of use without planning permission or a breach of condition on a planning permission, the four-year time limit under Section 171B(2) applies. 

It’s worth remembering this one: if it’s a house it’s not ten years, it’s four. 

Section 4.535 of DCP Online covers immunity from enforcement.

Long enough

An inspector has allowed the residential conversion of a commercial unit on the seafront in Suffolk, overruling the council’s objection that marketing of the property through the Covid-19 pandemic had not properly tested its viability for commercial use (DCS Number 400-036-526).

Local Plan policy stated that employment premises would be protected unless there was evidence that the premises had been marketed for a sustained period of 12 months. The council’s principal concern with regard to marketing, the inspector noted, was that the property was marketed during a period of unusual economic circumstances, particularly related to the Covid-19 pandemic. On this basis the council claimed that an additional period of at least 12 months marketing should be undertaken. Otherwise, there was insufficient certainty that a commercial use of the ground floor unit was not viable.

The inspector pointed out, however, that marketing had taken place for some 16 months outside the lockdown period. Furthermore, seven months of marketing had taken place since the council’s committee meeting on the planning application, with no end operator coming forward. 

The inspector acknowledged the economic context of both the pandemic and, more broadly, the UK’s departure from the European Union, but recorded that the appellant had undertaken a comprehensive marketing exercise for considerably longer than the minimum 12 months required by policy. He decided that it would be unreasonable to conclude that the appellant had not met the marketing requirements. Furthermore, the proposed residential use would be beneficial in improving the appearance of the boarded-up building and the street scene, and would enhance the appearance of the conservation area. 

There is a section concerning the marketing and viability of employment uses within 4.1446 of DCP Online. 

Keep your hair on

An inspector calmly rebutted a claim by appellants that an enforcement notice relating to their property in east London did not describe the alleged use accurately, in that it was a wig salon more than a hairdressing salon, the inspector reasoning that wig and hairdressing salons are highly similar and compatible land uses (DCS Number 400-036-546).

The inspector noted that customers attend hairdressing and wig salons alike for personal grooming services in respect of their own hair and/or a head covering which, in the case of a wig, may be made of real or artificial hair. Hairdressing appointments can vary significantly in duration, she continued, depending on the nature of the customer’s hair and the services they require, but she anticipated that the length of wig fitting and styling appointments would be within the hairdressing range. Further, from the appellants’ evidence, she noted that the ratio of staff to customers and the levels of foot and vehicular traffic generated by hairdressing and wig salons appeared to be comparable. 

Thus, the inspector recorded, wig and hairdressing salons both provide services principally to visiting members of the public, which are appropriate to provide in a commercial, business or service locality. She ruled that they both fall within use class E.(c)(iii) of the amended Town and Country Planning (Use Classes) Order 1987. 

Section 4.3336 of DCP Online concerns Class E of the UCO.

Harsh

A reminder that the GPDO has no flexibility has come in the shape of an appeal against the refusal of a certificate of lawfulness for a hip-to-gable extension to a house in north London (DCS Number 400-036-085).

The inspector explained that where an extension would, as a result of the works, extend beyond the plane of any existing roof slope which forms the principal elevation of the dwellinghouse and fronts a highway, it will not be permitted development under Part 1 Class  B.1(c) and will therefore require planning permission.

He observed that the house had a hipped roof, with a uniform slope down to the south-east, except for a small section to the rear of the house, where a second, much smaller road-facing parallel roof slope was set well back on the main roof. He noted that this much less evident roof slope would be altered by the hip-to-gable extension extending this section forward of that existing roof slope. Because of that, the project would not comply with condition B.1(c) of the Order. 

The inspector recognised that his conclusion might seem unduly or harshly uncompromising. He explained, however, that Order concessions are not concerned with matters of planning merit or whether any measured failure to comply with a condition or limitation is large or small. An enlargement scheme, he continued, either precisely complies with the limitations of the Order or it does not. Also, where any part of the scheme does not comply, none of the development is granted planning permission by the Order. He stated that authority for that position is the case of Garland v MHLG [1968], also Fayrewood Fish Farms v SSE & Hampshire CC [1984]. 

Part 1, Class B GPDO rights are set out at section 4.3421 of DCP Online.

On closer examination

The refusal of outline permission for an infill dwelling in a Sussex village has been overturned at appeal after it was discovered that the council had been wrong in stating that the site was within the 400m exclusion zone of the Ashdown Forest Special Protection Area (DCS Number 400-036-402). 

The council explained that the 400m zone had been drawn some time previously within their GiS mapping system, Datamap. A Datamap had been provided illustrating that the mapping system included virtually the whole site within the exclusion zone, the inspector noted. She recognised that, in assessing the site’s location in respect of the exclusion zone during the course of the consideration of the planning application, the council believed that they acted to the best of their knowledge given the information at hand. However, it became apparent to the council that the Datamap drawing capability was not the best by modern-day standards and this left the exclusion zone border open to interpretation. On further evaluation the council accepted that the site was just outside the exclusion zone.

In determining an application for costs against the council the inspector was clear that its actions were not deliberate. However, she found that the fact of the matter was that the council’s GiS mapping system was misleading and this was not the fault of the applicant. The PPG provides examples of unreasonable behaviour which may result in an award of costs, she noted, and withdrawal of any reason for refusal is one such example. 

Awarding costs to the applicant, the inspector ruled that the misleading information had resulted in an unnecessary appeal and had put the applicant to unnecessary time and expense in defending the appeal. She acknowledged that the situation was unfortunate for the council, but concluded that its reason for refusal had not stood up to scrutiny.

It’s always worth a closer look!

Section 6.13 of DCP Online concerns costs awards after unreasonable refusal. 

A ray of light

In deciding an appeal against the refusal of a certificate of lawfulness for the use of a former restaurant on a retail park in west London as a tanning salon, an inspector has shone some light on determining the relevant Use Class for the intended use (DCS Number 400-036-386).

A restaurant falls within Class E of the Use Classes Order, the inspector noted. The appellants maintained that a tanning salon use also falls within Class E, and that consequently the use of the former restaurant unit for the tanning salon would be lawful because it would not amount to development. The council, on the other hand, held that a tanning salon is a sui generis use.

The inspector reviewed various earlier appeals submitted to her by the parties and found that these demonstrated that there is no definitive view that a tanning salon use falls within Class E or that it is a use which is sui generis. She observed that the UCO includes a list of uses to be regarded as sui generis, and that the list does not include tanning salons. She found it clear, however, that the list is not definitive and other uses may also be sui generis. Therefore, it does not exclude tanning salons from being regarded as a sui generis use. 

The inspector pointed out that the onus was on the appellants to provide evidence to demonstrate that the tanning salon use fell within Class E. The appellants stated that the tanning salon would be open to visiting members of the public either on an appointment basis or as walk-in trade. To that extent the inspector found that the proposed use fell within Class E because it provided a ‘service to visiting members of the public’. Given the immediate site context, which was overtly commercial, she found that the tanning salon also met the description in Class E of a ‘service which it is appropriate to provide in a commercial, business or service locality’. 

In the circumstances of the particular case and acknowledging the generally more flexible approach advocated by government in respect of town centre uses, the inspector decided that the proposed use fell within Class E of the UCO. Accordingly, she issued a certificate of lawfulness.

The use class status of health and beauty uses is considered at section 17.2111 of DCP Online. 

A negative obligation

A planning obligation not to implement an extant planning permission has had a positive outcome for an appellant in Herefordshire (DCS Number 400-036-333). This is a case which demonstrates the usefulness of the planning obligation in the planning process.

Planning permission was in place for the subdivision of the appellant’s house to provide two dwellings. She subsequently applied to build a separate dwelling in the garden but this was refused outline permission, the council fearing that both permissions would be implemented. 

In response, the appellant submitted a unilateral undertaking that obliged the owner of the site not to commence or implement the extant permission and not to commence or implement any alternative development involving the subdivision of any dwelling on the site. The council argued, however, that the unilateral undertaking did not prevent future planning applications being submitted for the subdivision of the house once the extant permission had expired. 

The inspector acknowledged that this was the case but reasoned that any future subdivision of a dwelling on the site would require the removal or modification of the relevant obligation and an assessment as to whether the obligation no longer served a useful purpose. The inspector held that there was a clear and necessary purpose for the unilateral undertaking given that it ensured the proposal and the extant permission would not have a detrimental cumulative impact of additional open market dwellings at a location found contrary to the development plan.

The inspector determined that the obligations preventing both the implementation of the extant permission and the subdivision of dwellings on the land were material considerations of considerable weight in favour of the proposal, concluding that they justified a decision which was not in accordance with the development plan. 

Section 4.6152 of DCP Online concerns the use of planning obligations to secure the surrender of planning rights.

Accidents will happen

Or will they?

In determining an appeal against the refusal of planning permission for the conversion of a cartshed at a farm in Nottinghamshire to four holiday lets an inspector took a balanced view on the likelihood of an accident happening at the access (DCS Number 400-036-335).

The inspector acknowledged that while there were no records of accidents in the immediate vicinity of the site, the access provided limited visibility. The site was also close to a route which was fairly well-trafficked due to its proximity to the A60. The inspector considered that while improvements to the access were proposed, due to the limitations of what improvements could be provided, there would still be a detrimental effect on highway safety due to a substandard access. He concluded that the proposal would have an unacceptable effect on highway safety by way of the proposed access arrangements.

Nonetheless, the inspector noted that the cartshed was a curtilage listed structure as it was formerly associated with the grade II listed farmhouse. He observed that it was unused and that there were marked signs of disrepair, in particular to the roof and the external openings, as well as a partial collapse of one element. Despite this he found that it retained its overall pleasing appearance and historical significance as a traditional agricultural building that formed part of the grouping of buildings that made up the former farmstead. 

The inspector reasoned that the proposal would have the benefit of putting the building to a viable use consistent with its conservation and would enhance the significance of the heritage asset. It would achieve this by utilising the building for holiday accommodation use and so the asset could be sustained in the future. 

In the balancing exercise the inspector held that the likely harmful effect on highway safety attracted moderate weight because it was tempered by the improvements and the likely traffic generation. Set against this harm was that the proposal would bring a designated heritage asset back into use and in a manner which was consistent with its conservation. This attracted significant weight in favour of the proposal. Accordingly, he concluded that the harm that would arise as regards highway safety would be outweighed by bringing a designated heritage asset back into use.

Section 4.1515 of DCP Online concerns safeguarding of traffic safety at accesses.

A flawed approach

An inspector has granted a certificate of lawfulness for the use of an annexe to the rear of a semi-detached house in Dorset as an independent dwelling (DCS Number 400-036-160). In doing so, he awarded costs against the council because it had not used the correct test. 

The appropriate standard for testing the evidence, the inspector explained, is made on the balance of probabilities, that is to say whether something is more likely than not. He noted, however, that the council had mis-directed itself by applying a higher test of beyond all reasonable doubt. PPG guidance, he continued, sets out that an appellant’s own evidence does not need to be corroborated by independent evidence in order to be accepted. If the council has no evidence of its own, or from others, to contradict or otherwise make the appellant’s version of events less than probable, there is no good reason to dismiss the appeal, provided the appellant’s evidence alone is sufficiently precise and unambiguous. 

The inspector recorded that the evidence submitted in support of the LDC application and the subsequent appeal included signed statements from the tenants and the owner. They described the manner of occupation of the annexe building and its continuous duration for more than four years prior to the application. A signed and dated tenancy agreement was also submitted. Although the expiry date was wrong, the hand-written date of signature was not. Taken together, the inspector found that the evidence was precise and unambiguous overall in demonstrating a continuous use for more than four years. 

The inspector noted that the council report did not dispute that the annexe had been occupied as described by the appellant, and accepted the use was not incidental to the main house. Nor did the report dispute the length of time it had been so used. Instead, it relied on the fact that the appellant referred to the building as an “annexe”, that metered water and electricity services were taken from the main house, and that no council tax had been paid for the annexe. He determined, however, that none of these factors contradicted the appellant’s case. 

The inspector also recorded that the council report made clear that the overall judgement of the appellant’s case was that it had “not been demonstrated beyond all reasonable doubt”. He pointed out, however, that that is the standard of proof required for criminal cases and was the wrong test to apply. The relevant test, established by the court in Thrasyvoulou v SSE [1984], is the balance of probabilities – whether something is more likely than not. 

Awarding costs against the council, the inspector concluded that the failure to exercise sufficient care in making a decision on the application, and followed through into the appeal, based on a flawed approach in considering and weighing the submitted evidence, amounted to unreasonable behaviour which had resulted in unnecessary and wasted expense for the appellants in pursuing the appeal. 

Further information on appealing a refusal to issue an LDC can be found at section 4.3014 of DCP Online.