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The loss of privileges

In upholding enforcement notices directed at the material change of use of premises in north London to a house in multiple occupation and flats, the erection of a single storey rear extension and a dormer roof extension, in addition to the erection of a dwelling in the back garden, an inspector has pointed out that permitted development rights do not apply to buildings or uses which are unlawful (DCS Number 400-035-493).

With respect to the use of the main building, the inspector recorded that Section 55(3)(a) of the Act sets out that the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change in the use of the building and of each part of it which is so used. Consequently, the change of use to an HMO and flats was development for which planning permission was required. Further, Article 3(5) of the GPDO sets out that permission granted by Schedule 2 does not apply if (a) in the case of permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful; or (b) in the case of permission granted in connection with an existing use, that use is unlawful. 

It was not disputed, the inspector noted, that the rear extension and dormer met the limitations set out in Schedule 2, Part 1, Classes A and B, but what was in dispute was whether the premises actually benefited from permitted development rights at the time of their construction and if they did, whether the works which had been carried out were constructed to facilitate the unauthorised change of use. The appellant confirmed that the construction of the single storey rear extension, rear dormer extension and outbuilding were carried out at the same time. 

The inspector explained that, as held in RSBS Developments Ltd v SSHCLG & Brent LBC [2020], even where prior approval has been granted, Article 3(5)(a) may be engaged where unlawful works have been carried out. The same principle applies where in the case of permission granted in connection with an existing use, that use is unlawful (Article 3(5)(b)). The inspector found that the outbuilding had been used as a dwelling. He also found that the subdivision of the premises to form separate planning units constituted a material change of use and was unlawful. Consequently, he ruled that Article 3(5)(b) was engaged and the premises did not benefit from permitted development rights.

There is a section on multiple occupation at 11.2 of DCP Online.

Tilting at windmills

We might be tilting at windmills with this one but ‘the tilted balance’ does seem an odd expression. So, although it might be just us, we thought we would pass on a neat explanation from a reporter, determining an appeal against the refusal of permission for a large housing scheme outside Edinburgh, in case it’s helpful (DCS Number 400-035-535). 

“The Gladman decision [Gladman Developments Limited v. The Scottish Ministers 2020] introduced the concept of the “tilted balance”, whereby, if a shortfall in the effective five-year housing land supply is identified, this weights the balance in favour of proposals that would help to remedy that shortfall. The “angle” of tilt will be set by the extent of the shortfall.”

Further explanation can be found at section 7.131 of DCP Online.

Evil curs

Enforcement specialists encounter some evil curs in their line of work but we were a little surprised at the following report from an inspector, dealing with unauthorised waste tipping in Leicestershire (DCS Number 400-035-597).

Notification was given that the site inspection would be unaccompanied on an “access required” basis. The appellant was requested to ensure that provision (with any gates or barriers left open) was made available to access and conduct the site inspection unaccompanied. On arrival by car I was confronted by a dangerous looking and vociferous Alsatian dog chained to the entrance with a long chain. [The appellant] appeared and beckoned me through. I drove inside the site and found another Alsatian of similar disposition, chained to a fence. I walked around the site with [the appellant] who was at a distance, but “on hand” so to speak, should assistance be required in negotiating parts of the site within the sectors in which the dogs patrolled.

Give that man a medal.

There is further information concerning the conduct of site visits for appeals dealt with by the written representations procedure at 5.343 of DCP Online.

Perilously close

An inspector has granted planning permission for an earth-sheltered dwelling in the east Midlands countryside, having found that it would have the wow factor (DCS Number 400-035-511). 

There could be little doubt, the inspector found, that the proposed state-of-the-art dwelling had been carefully and sensitively designed to the most exacting environmental standards. He also remarked that those parts of the dwelling that would be visible from outside the site would have a striking contemporary appearance that would add a new and architecturally distinct element to the local landscape. In short, he considered that the house would possess the wow factor. 

That’s the good news. 

The not-so-good news is that the inspector upbraided the council for failing to adduce any positive evidence of its own to support its case that the development would be visually intrusive and would harm nearby heritage assets. He reminded them that inspectors may use their powers to make an award of costs where they have found unreasonable behaviour, including in cases where no application has been made by another party. 

The inspector explained that it is as much for the council to make out its case as to why planning permission should be refused as for the appellant to make out a case that it should be granted. Moreover, for the council to have acted reasonably, it must produce evidence to substantiate each reason for refusal. At the appeal stage, however, the inspector recorded that the council had simply repeated the contents of its officer report with one or two minor additions. He considered that it had manifestly failed to present a positive case to explain how the development would cause unacceptable harm to the form and character of the area or nearby heritage assets. Instead, it sought mainly to rely on a perceived lack of information. Not only did this contradict its assertion that the dwelling would be visually intrusive, he reasoned, but most of the concerns raised were either irrelevant to the actual reasons for refusal, were addressed by the submission of additional information at the appeal stage, or could have been dealt with by condition.

The inspector determined that because of these failings the council had come ‘perilously close’ to crossing the unreasonable behaviour threshold. Nevertheless, he exercised his discretion not to initiate an application for costs on this occasion, warning the council to take note of his comments to avoid any prospect of such an award being made in the future. 

Section 6.141 of DCP Online lists further examples of unreasonable behaviour which risk a costs award. 

On the sunny side of the street

Citing McLennan, R v Medway Council & Anor [2019], an inspector has rejected an appeal against the refusal of planning permission for a roof extension on a terrace house in north London on the grounds that it would restrict light to solar panels on a neighbouring property (DCS Number 400-035-543).

The inspector set out that in Medway it was established that “interference with the solar panels is a material planning consideration…. in addressing, (however modestly, on an individual scale), issues of climate change”. The case further established, the inspector explained “..that mitigation of climate change is a legitimate planning consideration in the public interest and that even individual microgeneration schemes are in the public interest. The case also establishes that, even though the Framework and planning policy may deal essentially with new development, it would be illogical to regard climate change as suddenly becoming immaterial, once the development had taken place.”

The parties accepted, the inspector noted, that the proposed roof extension to the appeal property would have some impact on the ability of the solar collectors on the neighbouring property to operate, with consequent impacts on the delivery of renewable energy to the property, and in a small way adversely affect the mitigation of climate change. He accepted that the extent of the impact might be limited. However, given the rapidly developing climate emergency and the failure of the appellant to propose any renewable generation scheme of his own which could both mitigate the loss and reduce greenhouse gas emissions of the significantly enlarged appeal property in accordance with national and local policies, he attached significant weight to the issue. 

The appeal was dismissed.

There is a section on solar power at 26.536 of DCP Online.

Another Finney mess

Due to the implications of Finney v Welsh Ministers [2019] an inspector has found himself unable to take any further action in respect of a Section 73 appeal seeking the removal of a time-limiting condition on a gypsy site in Worcestershire (DCS Number 200-010-854). 

The original permission was for ten gypsy pitches and 24 transit gypsy pitches, and was subject to a condition requiring the cessation of the use within four and a half years from the date of the decision. The appeal drawing, however, excluded the location of the touring caravans for transit pitches, and it was this matter which presented the inspector with a problem.

The inspector explained that in Finney it was established that an application under Section 73 may not be used to obtain a permission that would require a variation to the terms of the “operative” part of the planning permission, that is, the description of the development for which the original permission was granted. He acknowledged that the condition requested for removal would not necessarily affect the “operative” part of the permission itself. Nevertheless, the submitted application sought to exclude the transit pitches, which would require a change to the description. He reasoned that the removal of the condition would cause conflict with the original description of the development. Consequently, the grant of a new permission would result in conflict with the judgment in Finney

The inspector ruled that the creation of a new planning permission omitting the condition imposed on the original permission was beyond the powers under Section 73 and could not be made. Accordingly, no further action could be taken on the appeal. 

Section 4.416 of DCP Online contains background information and further appeal cases related to Finney

Simmonds says

An inspector has issued a certificate of lawfulness for ‘the construction of walls, pillars and gates as means of enclosure’ in leafy Surrey after considering the appeal in the context of relevant case law (DCS Number 400-035-334).

The inspector made it clear, firstly, that the planning merits of the development were not relevant and that her decision rested on the facts of the case, on relevant planning law and judicial authority. She recorded that under Schedule 2, Part 2, Class A, paragraph A.1 of the GPDO the erection of a gate, fence, wall, or means of enclosure erected or constructed adjacent to a highway used by vehicular traffic which is more than 1 metre above ground level is not permitted development. 

It was common ground that the height of the walls, piers and gates were in excess of 1m. Therefore, the inspector found that the appeal turned on whether or not the development was adjacent to a highway used by vehicular traffic. 

“The word ‘adjacent’ ”, the inspector said, “is not defined in the Act and the courts have held that legislators were not likely to have intended there to be a ‘one size fits all approach’. Case law also clarifies that adjacent does not necessarily equate to something being ‘contiguous’ or ‘abutting’. Consequently, the position established by the courts is that the word ‘adjacent’ does not necessarily mean that the walls, gates and pillars in question have to be abutting or touching the highway. Indeed in the case of Simmonds v SSE and Rochdale MDC [1981] it was held that a fence higher that one metre and less than one metre from a footway to a highway did abut the highway.”

It was clear to the inspector that each situation has to be considered on its merits and a planning judgement needs to be made in each case. She observed that the dwelling was located some distance from the driveway entrance and the verge and landscaping extended alongside the road for some distance either side of the entrance, the verge being relatively generous at over 4m in width in places. The verge consisted of grass and mature landscaping, including some trees. She considered that these factors in combination meant that it was highly likely that when the mature landscaping was in full leaf the dwelling and other boundary treatments would be largely screened. In her judgement, the walls, gates and pillars were not perceived to form the means of enclosure and the boundary between the highway and private land. 

The inspector concluded, taking into account all of the above, as a matter of fact and degree and on the balance of probability, that the walls, gates and pillars were not adjacent to a highway used by vehicular traffic. Consequently, she ruled that they were permitted development under the provisions of Class A of Part 2, Schedule 2 of the GPDO.

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

Waste not

An inspector has upheld an enforcement notice directed at the deposit of builders’ and civil engineers’ waste materials on a field in Derbyshire (DCS Number 400-035-332), despite the appellant’s rather ingenious defence that the materials were not, in fact, waste. 

The appellant argued that the materials were recycled soils, necessary for the purposes of agriculture. Accordingly, the inspector considered the meaning of ‘waste’. 

The inspector recorded that the definition of waste set out in Art. 1(a) of the Waste Framework Directive – Directive 2006/12/EC is: “…any substance or object in the categories set out in Annex 1 which the holder discards or intends or is required to discard.” He also related  that in OSS Group Ltd, Regina (on the Application of) v Environment Agency and others [2007], it was held that once lubricating oil had been processed into fuel oil suitable for burning, it ceased to be waste so as to require it to be handled and stored as waste. 

The judge in OSS Group Ltd considered the meaning of the term ‘discards or intends … to discard’. The use of the subjective test, the judge reasoned, while useful when examining the product in the hands of the ‘producer’ of waste, might not be apt to define the status of the material in the hands of a subsequent holder of the material for recycling or re-processing. He expressed the ‘general concept’ of the discard of waste as getting rid of something which is unsuitable, unwanted or surplus to requirements. He summarised European case law: “Understandably, the court has held that a material does not cease to be waste merely because it has come into the hands of someone who intends to put it to a new use. But that should not be because it still meets the Art.1(a) definition in his hands; but rather because, in accordance with the aims of the Directive, material which was originally waste needs to continue to be so treated until acceptable recovery or disposal has been achieved.”.

The inspector noted that a council site inspection had shown that a large amount of material had been imported onto the land. The officers concluded that those materials were soil-based but contained non-soil items such as brick, stone, concrete, tarmacadam, wood and plastic. They said it did not have the appearance of material that had been through a treatment process, rather, it was consistent with construction and demolition waste. 

The inspector agreed that it was hard to accept that deposited materials that contained large blocks of concrete, road tarmac, plastics and timber had received any significant screening before deposition. He decided that the enforcement notice’s allegation that waste materials had been imported and deposited on the land was correct, and was a breach of planning control. 

Section 25.3 of DCP Online covers waste tipping and landfill, and information concerning the Waste Framework Directive can be found at 25.312.

Baseline data

An inspector has quashed an enforcement notice directed at the change of use of a motor vehicle repair garage in a village near Barnsley to a mixed use of motor vehicle repair (B2 General Industrial) and a sui generis use for the undertaking of horsebox conversions, after considering the baseline position of the authorised use (DCS Number 400-035-240).

The inspector recorded that in Hertfordshire CC v Secretary of State for Communities and Local Government [2012] it was found that it is essential to establish a ‘baseline’ of what may be encompassed within the permitted use and that it is the change from the boundary of the permitted use which must be material. The appellant argued that the council had not acknowledged the baseline position of the lawful Class B2 use. 

The inspector noted that typical activities associated with the lawful vehicle repair/ MOT testing activities were likely to include various noise-producing activities, as well as fumes and so on. These activities would include electrical/mechanical impact drivers to remove tyres; car engines revving/tuning; panel cutting and beating (repairing damage to bodywork); paint spraying; welding; and use of compressed air equipment. 

During the inspector’s site visit the details of the process of the conversion works were outlined to him, all of the power tools used were demonstrated and samples of materials were cut and riveted. From his inspection of the site and from the physical demonstration of the power tools used, in terms of noise and disturbance generated, he considered that the character of usage relating to the conversion of vans to horseboxes fell squarely within any baseline position regarding car repairs and MOT testing.

The inspector concluded that there had been no breach of planning control by virtue of a material change in the use of the premises.

The background to  Hertfordshire CC v Secretary of State for Communities and Local Government [2012] can be found at section 4.327 of DCP Online: Intensification.

An unexpected turn of events

An inspector has decided that a lawful start has been made on a development granted planning permission in 2004, though not for the reason claimed by the appellant (DCS Number 400-035-184). 

Planning permission had been granted for the demolition of the existing buildings on the site and the construction of two new dwellings. This was subject to two conditions, the inspector noted, the first a standard five-year commencement condition, and the second relating to external materials. The second condition said: ‘Details of materials to be used on the external elevations of the development shall be submitted to and agreed in writing by the Local Planning Authority prior to the development being commenced.’ 

The council did not dispute that the demolition had occurred within the five-year life of the permission. However, it claimed that there was no written confirmation of the materials being agreed within what was an otherwise complete file. The appellant, although not disputing this, argued that the condition had been discharged by way of a verbal agreement between the 2004 applicant and a planning officer. 

In an unexpected turn, the inspector found the second condition to be unenforceable. She reasoned that, whilst it required materials to be agreed, there was nothing in the condition that required that the agreed materials should be used on the development. In other words, the condition lacked an implementation phase. In such circumstances the inspector considered that the condition was invalid and could therefore not be a ‘condition precedent’ going to the heart of the planning permission. Accordingly, she issued a certificate of lawful development.

Section 4.412 of DCP Online concerns the six tests for planning conditions.