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Time will tell

Given that the sale of new petrol and diesel cars is set to be banned from 2030 the prospects for the redevelopment of a site in rural Wiltshire might look better in a few years’ time. This appeal (DCS Number 400-033-194) related to the refusal of planning permission for the redevelopment of equestrian premises with a detached house.

The inspector found that the proposal would have an acceptable effect on the character and appearance of the area. He also found that it would generate a new dwelling which would make a positive contribution to the current undersupply, and would contribute to housing choice and mix locally. He further found that as the proposal would utilise previously developed land it would result in an efficient use of the site.

However, considering the very limited range of services and facilities near the appeal site, and the distance to the nearest village, the inspector found it highly likely that the future occupiers of the proposal would use private vehicles to access these. He noted the societal trends referred to by the appellant, including the rise of electric vehicles (including electric bicycles), greater working-from-home (promoted on the Connecting Wiltshire website and arising via the ongoing coronavirus pandemic), online purchasing, ‘shopping local’, and work and recreational opportunities afforded by fast broadband. He also noted that in line with The Road to Zero [The Road to Zero: Next steps towards cleaner road transport and delivering our Industrial Strategy (Department for Transport, 2018)] and Decarbonising Transport [Decarbonising Transport: Setting the Challenge (Department for Transport, 2020)] documents, and paragraph 112 e) of the Framework, the appellant had suggested a planning condition to require electric charging points on site. Nonetheless, the inspector reasoned that the use of sustainable transport modes, such as ultra-low and zero emission vehicles, cannot be mandated, and that the other factors mentioned would depend very much on personal choices. As such, considering the poor accessibility of the site to services and facilities, he found it necessary to take a precautionary approach, meaning that the significant use of internal combustion engine-based private vehicles by future occupiers must be considered to be a real possibility. 

Accordingly, the inspector found that the proposed development would not provide a suitable location for new residential development, having regard to the accessibility of services and facilities. 

Time will tell if these concerns are still relevant in 2030.

The sustainability considerations relating to rural dwellings are discussed at section 9.2381 of DCP Online.

Porch-like qualities

Have you ever wondered, in your quieter moments, about the defining characteristics of a porch? What is the critical difference between a porch and an extension? A recent appeal decision (DCS Number 400-033-310) clears this one up.

This decision followed an appeal against the refusal of a certificate of lawfulness for a porch on a semi-detached house in north London. The appellant’s case, the inspector related, was that since what was proposed was a porch, it fell to be considered under the terms of Class D of the GPDO, ‘Porches’. For its part, the council contended that it was an extension to the property that should rightly be considered in the light of Class A, ‘Enlargement, improvement or other alteration of a dwellinghouse’. The council’s reason for refusing to issue a certificate was that the proposed porch would link into an existing single-storey front and side extension, and would extend beyond a wall which fronted a highway and formed the principal elevation of the original dwellinghouse. 

The inspector pointed out, however, that the permitted development right under Class D reads ‘The erection or construction of a porch outside any external door of a dwellinghouse’. The key words from this class, he reasoned, are that the permitted right relates to “any external door”. So, whilst being attached to an earlier extension, the construction of the porch would be a distinct and separate operation from it. He found that what was proposed was clearly a porch that would serve an external door. Accordingly, it fell to be assessed against the permitted development right conferred by Class D. Given that the porch would accord with the size and siting limitations in Class D it would be permitted development, he determined.

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

The climate of opinion

In determining a residential appeal in south Devon (DCS Number 400-033-313), an inspector identified one of the main issues as being the extent to which the development would respond to the challenge posed by climate change.

The inspector noted criticisms of ground source and air source heat pumps, made in a submitted energy statement, but found that they were matters which could be addressed through site and plot design. Similarly, he found that the adverse visual impact of solar photovoltaic panels would seem to be a layout design issue.

Significantly, the inspector opined: ‘Furthermore, this is an issue where planning policy may not be quite keeping pace with developments elsewhere. My site visit took place on the third day of the Cop26 climate conference in Glasgow where the need for urgent action was once again made crystal clear by the Prime Minister.’ …‘It seems to me folly to build new houses now that will commit the owners to potentially expensive and disruptive alterations as the UK moves to decarbonise the heating of its housing stock.’

There is information concerning the implementation of climate change policy at section 4.1113 of DCP Online.  

Here’s why

In Don’t mention the wall we drew attention to the difficulty inherent in planning legislation which requires us to take an original building into account, particularly if the relevant part of the original building no longer exists. 

An inspector deciding an appeal against the refusal of prior approval for a 6m ground floor single storey rear extension under Part 1, Class A of the GPDO in south-west London (DCS Number 400-033-147) provides an insight into the rationale behind that legislation. 

The inspector determined that the proposed extension would not be permitted development, reasoning that an existing rear projection created a side wall and was still applicable because it was part of the original dwellinghouse, even though it would be removed. Consequently, the proposed extension would extend beyond a wall forming a side elevation of the original dwellinghouse and have a width greater than half the width of the original dwellinghouse, and therefore would not accord with criteria A.1 (j) (iii).

In coming to this decision the inspector had regard to Arnold v Secretary of State for Communities and Local Government [2015]. The judgment explains, she related, that a limitation is to be read as stated, and supported that appeal inspector’s conclusion in relation to extending beyond a wall forming a side elevation. The court ruled, “Firstly, there is no caveat in the GPDO which indicates that if original walls are demolished then the limitations within it no longer apply. Secondly, if this argument were to apply it would mean that any amount of increase in width could occur, so long as other limitations, such as not being within 2m of the boundary of the curtilage (A.1(g)) were satisfied. On a large plot such as this it could lead to huge additions being added beyond the line of an original side wall simply because it had first been demolished. I cannot accept that this was the intention of the Government in the rights conveyed and, as I have already pointed out, I am reassured in this finding as this is not what the wording of the GPDO actually states. Consequently, I find that the increase in the width of the front projection is not PD and required planning permission.”

Section 4.3421 of DCP Online provides information on development within the curtilage of a dwellinghouse.

Gone potty

While we are on the subject of unauthorised development, people do sometimes find themselves in trouble after erecting panels, fences, or balustrades around the perimeter of flat roofs in order to use the enclosed area for sitting out. No doubt this is often done with no thought that planning permission might be required. A householder in west London, however, has succeeded in his appeal (DCS Number 400-032-983) against an enforcement notice alleging ‘the creation of the roof terrace, by virtue of the placement of potted plants to the roof edge’, the inspector concluding that it was not development. 

The potted plants were considered by the council to create an enclosure of the roof at first floor level and their presence resulted in an intensification of use, the inspector reported. He pointed out, however, that ‘s55(2)(d) of the 1990 Act provides that the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such, shall not be taken for the purposes of the Act to involve development.’ In addition, he did not find, as a matter of fact and degree, that the placement of potted plants had resulted in such a change in the definable character of the use of the land that it amounted to a material change of use. In terms of building operations, he observed that the plant pots were rectangular in shape and, taken individually, were not particularly large. Taken together, he acknowledged that they did provide a relatively low enclosure, although there were gaps between them. However, whilst there was no suggestion of them being moved in the near future, he did not generally associate plant pots as permanent features. They were not fixed to the roof and were capable of being moved, he noted, and their placement would not normally be undertaken by a builder.

Quashing the notice, the inspector concluded that the placement of potted plants on the roof edge did not amount to building operations, and did not fall within the meaning of development requiring planning permission.

There are other appeal examples at section 12.414 of DCP Online which covers balconies and roof terraces. 

If it ain’t broke

The MP for Orpington’s private member’s bill to make unauthorised development without planning permission a criminal offence and to prohibit retrospective planning applications is due its second reading on 3 December. The bill no doubt has the support of residents in Kent who made representations on a recent appeal (DCS Number 400-032-938) against the refusal of planning permission for extensions to facilitate the change of use of a care home to eight flats.

The inspector observed that the development appeared to be largely complete. He recorded that the proposal was broadly similar to a development that had recently been granted planning permission, but explained that because some of the works carried out to the building departed from the details shown on the approved plans, planning permission was now sought for the development as built. 

The inspector acknowledged that the differences between the proposal and the approved scheme were numerous and varied, as several interested parties had pointed out. Nonetheless, he determined that the proposed development would be in keeping with the character and appearance of the host building and the local area and would not materially reduce the living conditions of neighbouring occupiers.

The inspector also acknowledged that interested parties were critical of the appellant for showing, in their view, ‘contempt’ and a ‘flagrant disregard’ for the planning system by failing to adhere to the approved scheme and then, in their eyes, expecting to gain a favourable retrospective decision. He pointed out, however, that the appellant was entitled to seek approval for the preferred development as much as anyone else. Moreover, he explained that the planning process includes a formal consultation stage within which comments may be made and these are taken into account by the decision-maker. Importantly, he further explained ‘a key principle of the planning system is that each proposal should be assessed on its own merits, whether or not it is (partly) retrospective.’

Whilst it might be very irritating to see development going ahead before the proper permission has been obtained it seems to us here on the DCP Blog that the system we already have in place is sensible and equitable for two reasons. Firstly, the denial of planning permission for unauthorised development nearly always entails a financial cost for the developer – let’s not criminalize them as well. Secondly, if retrospective planning applications are prohibited what will become of development which would have been approved?

If it ain’t broke don’t fix it.

Section 5.138 of DCP Online covers retrospective applications.

Build, build, build?

In making an appeal against the refusal of planning permission for a new house outside the development boundary of a settlement in Hampshire (DCS Number 400-032-987) the appellants claimed support from a speech made last year by the prime minister. 

“My attention is drawn”, the inspector reported “to a speech made by the Prime Minister on 30 June 2020 described as the “Build Build Build” speech which the appellants contend should outweigh the local policy.” She considered, however, that the speech was strategic in nature, setting out the general direction of government policy across a broad spectrum of subjects. Amongst other things, she noted, it set out how it is intended that the country will recover economically from the consequences of the Covid 19 pandemic. She reasoned that its generic nature would therefore not lend itself to being directly applicable to individual development proposals. Moreover, she noted, since the speech was made the government has issued the revised Framework, and Paragraph 1 confirms that it is this document that sets out the government’s planning policies for England and how they should be applied. Paragraph 2 reiterates the statutory requirement that planning applications should be determined in accordance with the development plan unless material considerations indicate otherwise. 

The inspector acknowledged that other statements of government policy may be material but, given that the Framework is more recent and specific than the speech referred to, she determined that it carried greater weight in her determination. On this basis she found that the general direction outlined by the prime minister carried little weight and would not outweigh development plan policies, nor national policy in the Framework.

The inspector concluded that the proposal would conflict with the spatial strategy for the district and no compelling reasons had been shown to justify determining the appeal other than in accordance with the adopted development plan.

There is information concerning the status of the NPPF at section 4.0121 of DCP Online.

No dope

In contesting the refusal of prior approval for a residential barn conversion in Somerset the appellant made a somewhat ill-judged claim regarding the former use of the building (DCS Number 400-032-919).

The inspector recorded that ‘There is reference to a possible illegal propagation operation taking place at the site, which it is contended comprised an agricultural use.’ He reasoned, however, that if indeed such an activity was taking place and was in fact illegal, it could not be taken to demonstrate or contribute to any lawful use of the building.

The inspector determined, on the balance of evidence, that on the relevant date a mixed use comprising of both agricultural and equestrian uses subsisted. Accordingly, the building was not solely in agricultural use on the relevant date. Thus, the proposal was not permitted development under Part 3, Class Q of the GPDO. 

No dope, this inspector. 

Further information on Class Q can be found at section 10.114 of DCP Online.

Last orders

Everyone knows that times are hard for rural pubs and that they are closing at a pace. Nonetheless, an inspector has ordered that a canvas-sided pergola at a pub in the Hertfordshire green belt should be removed despite the appellant’s plea for flexibility (DCS Number 400-032-356).

The inspector determined that the structure was inappropriate development in the green belt and that it had reduced openness. In addition, he found that the development was not of a high standard of design quality that was in keeping with the traditional character of the property. 

The inspector recognised that the effects the Covid-19 pandemic have had on the hospitality trade are well documented. He understood that social-distancing requirements had reduced the number of table covers by about half at the pub and was sympathetic to the general economic difficulties the appellant’s business might have encountered as a result. He therefore acknowledged that the canvas sides to the pergola might have helped create greater flexibility to help with the ongoing viability of the rural business and help the appellant continue to employ local staff. Nevertheless, he recorded that he had not been provided with any substantive evidence about how the business operated and how it had been affected. Further, he pointed out that the covered pergola was already being used before the pandemic and the first lockdown in March 2020. 

The inspector found that there was no clear indication as to when or if ‘normality’ would return and how long various social-distancing measures would be encouraged or imposed. The after-effect on the hospitality trade and society’s habits in general are also unknown, he continued. He did wonder whether to grant a temporary permission until the economic situation improved, but found that it was too indefinite. In any event, he reasoned that the development would still be physically present and continue to cause harm to the green belt and the character and appearance of the area.

That might be so but we do hope this is not last orders for the pub.

There is a section on external covered areas at pubs at 16.7326 of DCP Online. 

Silence is golden

An inspector has granted prior approval under Part 3, Class R of the GPDO for change of use to a storage and distribution use in Staffordshire notwithstanding the council’s protest that only the bases of the barns remained (DCS Number 400-032-422).

The appeal site contained three large concrete pads, the inspector observed. Article 2(1) of the GPDO, he recorded, sets out its interpretation of a ‘building’: A building is any structure or erection and any part of a building other than; plant, machinery, gates, fences, walls or other means of enclosure. Given that the pads once formed the bases of buildings, he reasoned, each was part of a building. While the rest of the structures had been removed, he found no reason to consider that the pads were no longer part of a building. In particular, he recorded that both Article 2(1) and Class R of the GPDO are silent as to any requirement for the whole building to still be present. As such, he determined, they benefited from the permitted development rights set out within the Class.

Did someone forget to add Class R to the exceptions listed in Article 2(1)(a) which exclude part of a building? 

Section 4.3423 covers Part 3 of the GPDO.