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The hands of time

If William Morris were still here he might be interested to know that, whilst many of his ideas were considered revolutionary in his lifetime, some have since been absorbed into mainstream planning policy. In particular, he did not share his fellow Victorians’ enthusiasm for turning back the hands of time in relation to the preservation of ancient buildings, and an appeal decision against the refusal of listed building consent for internal alterations to a thatched cottage in Wiltshire (DCS Number 400-022-320) is in line with his philosophy.

In this case the inspector observed “….it would not appear that the repairs adopted the approach recommended in Historic England’s ‘Principles of Repair of Historic Buildings’ which advises that: ‘A conservative approach is fundamental to good conservation – so retaining as much of the significant historic fabric and keeping changes to a minimum are of key importance when carrying out repair work to historic buildings. The unnecessary replacement of historic fabric, no matter how carefully the work is carried out, can in most situations have an adverse effect on character and significance.’ “

The appellant, the inspector noted, referred on several occasions to the approach to conservation adopted by William Morris, who founded the Society for the Protection of Ancient Buildings in the late 19th century. The inspector pointed out, however, that “….Morris was against a particular ‘restorationist’ approach which involved trying to return a building to its ‘original’, or imagined original, form. He supported retaining surviving building fabric, no matter how flawed by the passage of time, while employing minimal, non-intrusive reinforcement of the existing infrastructure to prevent future damage. That philosophy informs much of Historic England’s current approach, which is to try to retain as much of the significant historic fabric as possible and keep changes to a minimum. Whilst that does not necessarily preclude the honest use of more modern materials or interventions, where appropriate, the need to do so has to be properly assessed and evidenced.” 

Finding a lack of clear evidence of a conservative approach or any agreed design scheme in relation to the changes made, the inspector dismissed the appeal.

Section 27.233 of DCP Online concerns internal alterations to listed buildings.  

Celebrity gossip

Readers who move in certain circles might already be aware that, after his problems with a proposed private chapel on his Suffolk estate, Ed Sheeran does at least now have his wildlife pond sorted out.

The background is that in 2017 planning permission was granted for the construction of a wildlife pond. When the pond was constructed, a jetty and some steps were also installed. Subsequently, an application was submitted seeking planning permission for these features as well as an equipment shed. Whilst planning permission was granted, a condition was attached to the permission restricting use of the pond as a wildlife pond and not for other uses including any recreational leisure activity uses such as swimming, watersports or fishing. The reason for the condition was so that the local planning authority could retain control over the development in the interests of amenity and the protection of the local environment. An appeal against the imposition of the condition was then made (DCS Number 400-022-627).

The inspector pointed out that the planning permission subject to the appeal related to landscape features and the equipment shed and not to the pond itself which had been permitted under a previous application. He found no evidence to suggest that the landscape features and equipment shed would result in adverse effects on biodiversity, geodiversity and landscape character areas without the continued imposition of the condition. Consequently, he determined that the condition was not necessary to make the development acceptable in planning terms. Moreover, given that the planning permission was not for the pond itself he found no justification for controlling its use, and the condition was therefore not relevant to the development permitted.

Whilst you can sympathise with the council’s wish to address the concerns of neighbours who are up in arms – we’ve been there, we really have – you just can’t do this. 

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

Truncated

An inspector has authorised shorter visibility splays than deemed necessary by the council at the access to six dwellings in Suffolk, finding no particular justification for insisting on visibility splays suitable for a trunk road (DCS Number 400-022-073).

The highway authority sought visibility splays into the site to be provided in accordance with the Design Manual for Roads and Bridges (DMRB), and so sought splays of 2.4m x 90m rather than the 2.4m x 43m shown in the submitted drawings. The appellant, on the other hand, contended that the requirements for visibility splays set out in Manual for Streets should be used since the road had a 30mph speed limit. 

The inspector reasoned that it was necessary to consider what visibility splays were suitable. The DMRB states in Section 1, he recorded, that it shall be applied to the appraisal and design of motorways and trunk roads. He noted that the road was not a trunk road (or motorway). He accepted that the highway authority could apply the standards within the DRMB to other roads, but given the wording of the DRMB he found it axiomatic that there must be sound reasons for doing so.

The council argued that the road was free flowing with little built form, and had a very rural feel. The inspector observed, however, that the road had a 30mph speed limit and was on the edge of the village, with housing and a roundabout close by. He considered that it very much had an appearance of a road entering or leaving a built-up area, rather than an open, rural road. He therefore could not see any particular justification for insisting on visibility splays suitable for a trunk road, as set out in the DMRB. 

Allowing the appeal, he was satisfied that the provision of visibility splays of 2.4m x 43m would provide safe access and egress from the site.

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

A bit off

The neighbours might not have thought much of this one (DCS Number 400-022-191) but it gives us an idea how far built development can vary from the approved plans before being deemed unauthorised. 

The case concerns an appeal against an enforcement notice which required the demolition of part of an extension to a house in Sussex. The council maintained that one of the approved drawings showed the extension as being 4m from the neighbouring property, which was a crucial determining factor in finding the scheme acceptable, whereas it had been built 2.8m from the property. 

After agreeing measurements on site it seemed to the inspector that the overall length of the extension was between 235 and 310mm longer than the main plans showed and this appeared to have reduced the gap to the boundary (and to the adjacent property) by a distance of between 235mm and 250mm at the front corner. The inspector reasoned that “When considering whether something has been constructed in accordance with a planning permission, the extent that the development complies with the plans submitted has to be considered as well as the extent that it does not accord with the plans.” He found that there was substantial agreement with the main plan and elevation, determining that the small error of around 250mm at the front corner was relatively small and de minimis. Taking into account errors in the site plan, and the extent the development accorded with them, he concluded that the development had been substantially built in accordance with the plans submitted. Accordingly, he quashed the notice.

Section 4.5335 of DCP Online concerns enforcement against departure from a permission or approved plans.

Still no

In It ain’t necessarily so we reported an appeal case in which a certificate of lawfulness was issued for a mobile home within a residential curtilage despite the council’s concern that it could be used as a separate unit of accommodation. What if a mobile home were to be built and assembled on site? Surely then it would need planning permission? Still no.

In (DCS Number 400-022-192) an LDC was issued for a mobile home to be used as ancillary accommodation at a house in Kent, even though it would arrive at the site in two parts. The inspector explained:

“The term ‘caravan’ is defined by statute. It means a structure designed or adapted for human habitation which is capable of being moved from one place to another (whether by being towed or by being transported on a motor vehicle or trailer). The structure can comprise a twin unit caravan which is defined as one that is composed of not more than two sections separately constructed and designed to be assembled on site by means of bolts, clamps or other devices and is when assembled physically capable of being moved by road from one place to another. The structure must not exceed specified dimensions. These prerequisites are generally known as the size, mobility and construction tests.”

The issue in dispute, the inspector noted, was whether the construction test was met. She recorded that the structure was to be built as two sections on site and then joined together. She explained that there is established law that there is no requirement that the process of creating the two separate sections must take place away from the land. The mobile home would therefore satisfy the construction test, she determined. The council further argued that assembling all components on the site itself would necessitate the installation of electrics and plumbing which would comprise building works and thus operational development. The inspector was not convinced, however, that these were separate acts of operational development. She decided that the mobile home would not amount to development requiring planning permission.

Further information on this subject can be found at section 24.61 of DCP Online.

It ain’t necessarily so

Curtilage caravans which provide all the requirements for independent occupation must require planning permission, right? Not necessarily. Proving the case, an inspector has issued a certificate of lawfulness for the siting of a three-bedroom mobile home within the garden of a house in Essex (DCS Number 400-021-680).

The council’s mistake was to determine the application with reference to Class E of Part 1 of Schedule 2 of the GPDO and conclude that the proposal would not constitute permitted development. The inspector considered that, when having regard to the factors of permanence and attachment, the mobile home would not meet the well-established definition of a building and Class E did not apply. Rather, it would fulfil the statutory description of a caravan.

The issue was whether there would be a use of land constituting development, the inspector explained. She recorded that under section 55 of the 1990 Act development includes the making of any material change in the use of any buildings or other land. As set out in Wealden DC v SSE & Day the stationing of a caravan is not a material change of use; it is necessary to identify the purpose for which the caravan is sited and no development is involved if the use is incidental. In addition, the judge in Uttlesford DC v SSE & White [1992] considered that, even if the accommodation provided facilities for independent day-to-day living it would not necessarily become a separate planning unit from the main dwelling; it would be a matter of fact and degree.

Whilst the mobile home would contain all the facilities for independent living it would not be used in that way, the inspector noted. As described by the appellants, the use would be part and parcel of the main dwellinghouse use rather than ancillary to it. The mobile home would simply provide additional living accommodation for family members forming part of the same household. It would be positioned within the same planning unit as the dwelling utilising the same access and with no separate curtilage. The inspector determined that, provided the mobile home remained part of the same planning unit as the dwellinghouse and the planning unit remained in single family occupation and continued to function as a single household, no material change of use would be involved.

The inspector concluded that the council’s refusal to grant a certificate of lawful use or development in respect of the use of land to site a mobile home within the garden of the appeal property for additional living accommodation was not well-founded and that the appeal should succeed.

Further information on this subject can be found at section 24.61 of DCP Online.

Skid lids and lattes

A group of bikers might not be the first image that comes to mind when thinking of the British countryside, but an inspector has allowed a motorcycle café in rural Lincolnshire, pointing out that motorcycling is an activity which can contribute to the rural economy (DCS Number 400-021-913).

The inspector understood that the coffee shop would act as a meeting place for like-minded individuals with the same enthusiasm for motorcycles as the appellant. She reasoned that “there are many different types of motorbikes and motor biking activities. As well as being used as a general mode of transport, motorcycles are used as a hobby and in connection with sport and leisure purposes. In my view, riding motorcycles in rural areas, along rural roads and visiting rural attractions and events, mainly on weekends and bank holidays, is a leisure activity connected to the countryside and one which assists in retaining the vitality and viability of many rural visitor attractions and facilities.” She determined that the appeal site would be an appropriate location for the proposed use.

Let’s hope they won’t be using Quiet Lanes.

Section 13.5 of DCP Online concerns motor vehicle sales and section 16.3 concerns road user services.

Shape shifting

In the green belt openness and visual amenity used to be discrete things but it looks like they have merged into one another. For the record, an inspector dealing with an appeal against the refusal of permission for a single dwelling in the green belt in Hertfordshire has set out the relevant court cases (DCS Number 200-008-480).

“The clear conceptual distinction between openness and visual impact, in Timmins V Gedling BC [2014] EWDC 654 (Admin), was found to be incorrect in the Court of Appeal judgement Turner v SSCLG & East Dorset Council [2016] EWCA Civ 466. This judgement confirmed that the openness of the Green Belt has a spatial aspect as well as a visual aspect and assessing openness was found not to be limited to measuring the volume of the existing and proposed structures on the site. Many factors were found to be relevant and could include how built-up the Green Belt was currently and how built-up it would be if the proposed development went ahead.”

“Such an approach on openness of the Green Belt was further confirmed in the Court of Appeal Judgement, Samuel Smith Old Brewery (Tadcaster) & Oxton Farm v North Yorkshire CC & Darrington Quarries Ltd [2018] EWCA Civ 489 which indicated that when a development was likely to have visual effects within the Green Belt, the decision-maker was required to consider how those effects bore on the question of whether the development would preserve the openness of the Green Belt.”

Further information on green belt policy can be found in section 4.251 of DCP Online.

High on the hog

They live high on the hog in Essex. Because there, a restaurant is reckoned to be a community facility.

In this case (DCS Number 400-022-010) the change of use of a restaurant to two residential units was rejected at appeal because it “…would have a harmful impact on the ability of the community to meet its day to day needs.”

The inspector found very limited evidence to demonstrate that the change of use would comply with development plan policy which stated that “..planning permission will not be granted for change of use of any premises that provide facilities or services which support the local community, unless the use concerned is not economically viable, could not be provided by some other means or is genuinely redundant.”

The appellant argued that the village hall was within walking distance of the site, but the inspector was not persuaded that this facility would meet the needs which were currently provided for by the appeal premises. The appellant further argued that, on the basis that the site was not in Use Class D1 and was not a public house, post office or petrol station, the appeal scheme did not fall to be considered under the development plan policy. The inspector reasoned, however, that the explanatory text which accompanied the policy referred to such uses as examples. Neither the policy nor the Framework provide a closed list of the type of facilities which could be regarded as essential to meeting the needs of local communities in rural areas, she noted. Consequently, a restaurant could be considered to be a community facility, she ruled.

We’re moving to Essex.

Section 4.1444 of DCP Online concerns the loss of community uses.

Substantially completed

Section 171B(1) of the 1990 Act sets out that where there has been a breach of planning control consisting of the carrying out without planning permission of building operations, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.

Say, then, that the building operations are carried out over a period of five years, are the operations carried out in Year 1 immune from enforcement? No they aren’t, and an inspector dealing with an appeal against an enforcement notice which required the removal of a roof terrace (DCS Number 400-021-972) tells us why:

“…. the cases of Ewen Developments Ltd v SoS & North Norfolk DC 6/2/80 and Worthy Fuel Injections Ltd v SoS 23/7/82…. clarified that a building constructed gradually, over the course of time, was one operation, even though parts of the structure or development had been constructed more than 4 years prior to the service of an enforcement notice. Thus, any operational development carried out more than 4 years prior to the issue of an enforcement notice, would not be immune from enforcement action, unless the development as a whole was substantially completed at least 4 years prior to the issue of the notice.”

Details of the four-year rule can be found at Section 4.5353 of DCP Online.