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Not long now

A request that the the period of time for complying with an enforcement notice relating to an outbuilding at a Kent cottage should be extended to two years was refused by an inspector who took a more sanguine view about our economic recovery from the pandemic than the appellant (DCS Number 400-030-367).

The enforcement notice required removal and reinstatement following the unauthorised extension and alteration of the building. The inspector reasoned as follows:-

“I am given to understand that the appellant has recently experienced financial difficulty due to a loss of income during the COVID-19 pandemic. Nevertheless, the Government’s recovery roadmap indicates that as the vaccination programme progresses over the next few months or so there will be a gradual rolling back of restrictions on travel and social contact. This is likely to increase the appellant’s access to employment opportunities, in turn offering the prospect of an improvement in their financial position in the near future.”

The inspector decided that the compliance period of nine to eleven months specified in the notice struck an appropriate balance between remedying the planning harm identified as soon as practicable, whilst also allowing a reasonable timeframe for the appellant to make arrangements in respect of the works and have them carried out.

There is a section on the period for compliance with an enforcement notice at 4.5361 of DCP Online. 

No mobile when mobile

An inspector’s conclusion that school children’s use of mobile phones would result in harm to pedestrian safety brought a knowing smile at DCP Blog HQ. 

In dealing with the appeal against refusal of planning permission for two houses on garden land in south Yorkshire, (DCS Number 400-030-386), the inspector noted that access would be by means of an unadopted highway that was primarily a pedestrian and cycle route forming part of a “safe route to school”. She reasoned that whilst the two new dwellings might not create a significant number of vehicular movements in themselves, it would still represent a doubling in the amount of vehicular traffic using the lane. For much of its length the lane was not wide enough to enable vehicles and pedestrians or cyclists to pass safely and, moreover, due to the bends along the lane, forward visibility was often limited. 

The inspector agreed with the council that as a “safe route to school” the route was likely to be used by children and young adults who have less road skills and who might easily be engrossed with their mobile phones. She reasoned that the character of the lane was such that they might forget that it was actually a vehicular route as well. Given this, and the designation of the lane as a “safe route to school” any increase in the use of the lane by vehicular traffic should be avoided, she decided.

There is a section on safeguarding traffic safety at accesses at 4.1515 of DCP Online. 

Even more of the same

In More of the same we reported an appeal case (DCS Number 400-015-923) in which the inspector considered the nature of intensification. This was in relation to a caravan site in Hertfordshire. In so doing he cited R (John Childs) v First Secretary of State and Test Valley Borough Council [2005]. In a more recent appeal case in Aberdeenshire (DCS Number 400-030-360), again involving caravans, the reporter set out further relevant case law. She also set out a handy formula for dealing with such situations. 

There were, she reasoned, (potentially) two questions for her to decide:  first, would there be a definable change in the character of the use of the land from the permitted use if the proposed use went ahead? second (if the answer to the first question was yes), would the change of use be material? She also recognised that any effects of any such change of use, on- or off-site, would only be relevant to the second question. 

Here is the case law cited by the inspector:

Cotswold Grange Country Park LLP v Secretary of State for Communities and Local Government [2014] confirms that when planning permission is granted for a particular use, any limitation on the way in which that use is to be exercised must be imposed by condition. The reporter found that the facts of that case had some similarity to the case before her in that the description in the permission at issue referred to the siting of a specified number of caravans within a caravan site, but no condition limited the number of caravans to the number specified in the description. The court confirmed that the description did not limit the number of caravans on the site and that a proposal for the siting of additional caravans raised the question only of whether that would constitute a material change of use from the permitted use. 

In Hertfordshire County Council v Secretary of State for Communities and Local Government, Metal and Waste Recycling Limited [2012], the reporter continued, the High Court found that mere intensification of a use of land does not by itself amount to a material change of use if it falls short of materially changing the definable character of the use of the land. And, in Reed v Secretary of State for Communities and Local Government [2014], the Court of Appeal confirmed that this principle would apply to an increase in the number of caravans in a caravan site. Moreover, in Hertfordshire, the court found that, while significant environmental effects, on- or off-site, might be evidence that a material change of use by intensification has occurred, they do not themselves constitute a material change of use. The court gave the example, the reporter related, of the introduction of a specialist gas-bottle disposal facility in an existing scrapyard. An increase in scrapyard noise does not by itself amount to a material change of use, but the different and additional noise impact of the bottle facility might be evidence of its being a materially different use. 

The reporter also made reference to Childs v First secretary of State and Test Valley Borough Council [2005], cited by the inspector in More of the same

Section 4.327 of DCP Online deals with intensification. 

Rich as Croesus

Now that an inspector has sanctioned the retention of a gold-finish shopfront in a secondary retail stretch in southeast London (DCS Number 400-029-908), it must be only a matter of time before the appellant is rich as Croesus.

The inspector remarked that the shopfronts and fascia signage in the area were in many cases far from traditional, in differing states of condition, and at times uninspiring. Fronts varied considerably, he noted, often reflecting the uses, for example the subtle deli, the functional general store, and the bright, open takeaway.

The inspector acknowledged that the shopfront, the subject of the appeal, did draw the eye. In its present state, he related, it was gold in reflective, almost mirror-like, finish and had a large glass-to-frame and stallriser ratio. The council considered the design to be inappropriate and the materials to be incongruous and of poor quality, and that the overall result was a shopfront which was harmful to the character and appearance of the subject building, shopping parade, and wider district centre. 

The inspector was aware that the works were not complete, as a membrane was to be applied which would reduce the degree of shine, and he had more confidence than the council that this could be done to be effective and without looking second-rate. He considered that a simple toning down a little of the finish would make the frontage less garish. He did readily take the appellant’s points that it was good to see investment in the parade and that not everyone shares the same taste. Approaches to businesses vary, he remarked, and he recognised that a gold finish to many would represent prosperity and success and in its own right act as signage for the business. 

The inspector held that a wish to stand out to a degree was not an ambition which should always be denied unless manifest wider harm was caused to character and appearance attributes or the economic well-being of an area. In his opinion these negatives did not arise here. With the modification proposed he was content that the appeal scheme would preserve immediate and wider character and appearance. He concluded that the scheme would sit comfortably with the host building and add further visual interest, life and aesthetic appeal to the locality. 

There is a section on shopfront design at 13.431 of DCP Online. 

Without end

An inspector has upheld an enforcement notice requiring the cessation of unauthorised airport parking in the Bristol and Bath green belt, unpersuaded by the appellants’ argument that the reversibility of the use rendered it not inappropriate (DCS Number 400-030-218). 

The appellant referred the inspector to Europa Oil and Gas Ltd v Secretary of State for Communities and Local Government [2013] (upheld at 2014), which involved a drill site to explore for hydrocarbons in the green belt, including plant and buildings. The inspector in that case failed to consider the proposal in the context of paragraph 90 of the Framework then in force, which said, as does paragraph 146(a) in the current version, that mineral extraction is not inappropriate development. The court, the inspector in the current case related, held that the effect on openness had to be considered in the context of duration and reversibility. However, the court also said that those factors are of particular importance to the thinking which makes mineral extraction potentially appropriate in the green belt. Another is the fact that extraction, including exploration, can only take place where those operations achieve what is required in relation to the minerals. Minerals can only be extracted where they are found. Thus, the inspector reasoned, the considerations relating to mineral extraction are completely different from those for a material change of use of land of the kind involved in the appeal before him. There are no physical constraints which mean that car parking can only take place in a very limited number of locations, he continued, nor is the existence of such land finite.

The inspector did acknowledge, on the other hand, that there are a number of considerations which are relevant to the assessment of openness in relation to car parking. He considered that the first is that of frequency of use. The evidence before him suggested that the site was used on a year-round basis, throughout the day and night and that the number of cars had increased as time passed. He accepted that the use was reversible, but, unlike mineral extraction, which is a finite activity, there was no such “end date”. 

There is no statutory definition of openness, the inspector explained, but he regarded it as the absence of physical manifestations of development. He decided that the parking of densely packed cars on the scale involved in the case before him, where several hundred cars might be parked at one time, appeared as manmade development and it clearly reduced the spatial openness of the land.

The inspector concluded that the use of the land for airport parking was inappropriate development, contrary to development plan policy, and resulted in loss of openness in the green belt, which is harmful in itself.

There is a section on appropriateness within green belts at section 4.2513 of DCP Online and airport parking is covered at section 20.5111.

A hidden gem

It’s amazing the treasure that can be found in planning inspectors’ footnotes. 

In refusing an appeal against the redevelopment of a house in Kent with five new dwellings (DCS Number 400-030-179) the inspector found that the failure of the scheme to achieve any reasonable sight splay at the access to the public highway was more than a technical breach. He ruled that to allow the appeal and permit the development would lead to an unacceptable risk to highway safety that must override the several benefits of the proposal and the quality of the architecture and internal layout proposed. Dismissing the appeal, he concluded that it was not a ‘City of Edinburgh’ case, as suggested in the appeal statement. At this point the inspector’s decision directs us to a footnote where we find, quoted, a 1997 ruling from the eminent planning judge, Sir Jeremy Sullivan, which proved highly influential in the development and operation of our current planning system. Here is the inspector’s reference, which will no doubt start to sound familiar as you read towards the end:- 

City of Edinburgh Council v. Secretary of State for Scotland [1997] decision wherein Sullivan J. went on to say that:- “I regard it as untenable to say that if there is a breach of any one policy in a development plan, a proposed development cannot be said to be “in accordance with the plan”. Given the numerous conflicting interests that development plans seek to reconcile: the needs for more housing, more employment, more leisure and recreational facilities, for improved transport facilities, the protection of listed buildings and attractive landscapes et cetera, it would be difficult to find any project of any significance that was wholly in accord with every relevant policy in the development plan. Numerous applications would have to be referred to the Secretary of State as departures from the development plan because one or a few minor policies were infringed, even though the proposal was in accordance with the overall thrust of development plan policies. For the purposes of section 54A it is enough that the proposal accords with the development plan when considered as a whole. It does not have to accord with each and every policy therein.”

Information concerning the background to the decision-making process can be found at section 4.01 of DCP Online. 

On the corner

On a housing estate the layout and spaces between buildings can be all-important. In a recent appeal decision (DCS Number 400-030-117) the inspector recognised the value of the space around a corner-plot dwelling on an inter-war estate. 

The inspector saw that the host dwelling was one of around four dwellings in the immediate locality which had similar side gardens. The wider surrounding estate had quite a formal arrangement with a moderate density of housing, she remarked. The appeal proposal involved the creation of an end-of-terrace dwelling alongside the host dwelling. 

The inspector judged that the layout of the estate with the open corners appeared deliberate and there was a clear distinction between the urban form, the open frontage and side gardens and the public realm. Although there was a high demand for on-street parking, she found that the area had a spacious quality to it and a rhythm in the street pattern. 

The inspector considered that the introduction of a dwelling onto the end of a terrace would undermine the existing coherent street pattern. As a separate dwelling of irregular proportions relative to the surrounding dwellings, the proposal would appear contrived and cramped and sited in a manner that would detract from the openness of the garden in its current form. Dismissing the appeal, she concluded that the proposal was harmful to the character and appearance of the area.

Useful information relating to national policy and guidance on urban form can be found at section 8.331 of DCP Online.

A new thing to worry about

A householder in Bournemouth who appealed against the council’s decision to turn down his proposal for a six foot fence at his property had included in his description of development an explanation of why he wished to erect the fence. “Following the Corona virus lockdown,” he explained, “it flagged up a need for an enclosed family garden.” He wished to provide a safe and secure space for small children and “in addition, provide a barrier between the garden area and pedestrians walking past who may cough and expel droplets into the air.” (DCS Number 400-030-073).

The inspector considered that the fence would be a highly intrusive feature in the street scene, and would restrict views of the host property from the street, resulting in a fortress effect. She acknowledged that the appellant was seeking to make his garden more secure and private and to provide safe outdoor play space. It seemed to her, however, that there might be alternative ways of achieving this that were less harmful to the character of the area. 

The usual planning considerations relating to the erection of walls and fences can be found at section 12.333 of DCP Online….. but this is a new one. 

Farmer’s market

Planning policy often demands a 12-month marketing exercise to test demand when the lifting of a restrictive condition or a change of use is proposed. In a recent appeal, however, (DCS Number 200-009-877) the inspector decided that the period should be extended to take account of lockdown periods during the pandemic.

This case involved the removal of an agricultural occupancy condition from a bungalow in Nottinghamshire, granted planning permission in 1963. The inspector noted that one exception to development plan policy which strictly controlled development in the countryside was for dwellings for agricultural workers. Where such dwellings already existed occupancy restrictions would only be removed where it could be demonstrated that they no longer served a useful purpose. To fully explore whether a rural worker housing need existed, marketing evidence had to be provided demonstrating that the dwelling had been marketed at an appropriate price for a period appropriate to market conditions at the time. 

Reviewing the evidence, the inspector found that the property had been continuously marketed as of the date of the hearing for a period of nearly 17 months. He noted, however, that since March last year the COVID-19 pandemic has had a considerable impact on society and the economy. The first national lockdown closed estate agents, he continued, and prevented physical in-person viewings for a period of almost two months between late March and mid-May. In the subsequent national lockdowns in November and the lockdown that began in January 2021, estate agents have remained open and in-person viewings have been able to take place. However, he found it reasonable to expect that the strong government messaging during these periods that people must stay at home would have had a dampening effect on interest and viewings. 

In light of the pandemic, the advice of the council’s independent advisor was that the period of continuous marketing should be revised to a minimum of 24 months. The inspector decided that, given the restrictions in place and desire by many not to unnecessarily expose themselves to the risk of infection, the months during which a national lockdown has applied should be discounted from the period of marketing in order to test the market properly. 

Dismissing the appeal, the inspector concluded that it had not been demonstrated that the condition was unreasonable and unnecessary.

There is a section on the removal of agricultural occupancy conditions at 9.4 of DCP Online.

Cut down to size

In dealing with an enforcement appeal concerning timber hoarding at a site in southwest London an inspector pointed out that the relevant permitted development rights do not apply retrospectively (DCS Number 400-029-930).

The appellant had reduced the height of the hoarding from 2.3m to 1.9m in the belief that it would then qualify as permitted development under Part 2, Class A of Schedule 2 of the GPDO 2015. The inspector pointed out, however, that limitation A.1 (b) states “(b) the height of any other gate, fence, wall or means of enclosure erected or constructed[inspector’s emphasis] would exceed 2 metres above ground level”. As a matter of fact, the inspector recorded, the timber hoarding was initially erected or constructed at a height in excess of 2m, contrary to the limitation. He reasoned that whilst the alterations carried out since might have resulted in development that would be comparable to that permitted by Class A, a fence less than 2m in height had not been erected or constructed from the outset. 

Upholding the enforcement notice, the inspector ruled that the GPDO does not grant planning permission to reduce the height of a fence and therefore it could not be said to benefit from those permitted development rights retrospectively. 

The permitted development classes are set out at section 4.342 of DCP Online.