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Unfathomable

While we are on the subject of unnecessary conditions (Double trouble), here is an appeal case in which the inspector found the imposition of a condition to be unfathomable (DCS Number 400-028-145).

This case concerns the planning permission for the redevelopment of a local police station and section house in a residential area of Surrey with a Co-operative convenience store and three flats, to which the council had attached a condition restricting opening hours. The condition stated that the use should not operate outside the hours of 7am to 11pm for the first twelve months and after that the use should be between 7am and 10pm unless otherwise agreed in writing by the local planning authority. The reason given for the condition was to safeguard the amenities of neighbouring properties and to allow the LPA to monitor the situation.

The inspector remarked that whilst the area was predominantly residential in nature the previous use of the site had not been wholly domestic. Furthermore, the site was on a relatively busy main road, in places with commercial use, and the immediate ambient environment was not one of total peace. There was some separation of parking spaces from immediate neighbours, and the layout would minimise manoeuvring. The shop was intended to meet convenience needs, he noted, and these do run through the evening. 

The inspector stated that he was acutely aware of the need to safeguard residential amenity. However, given the factors above he just did not fathom or support the idea of a trial period and an automatic reduction of one hour’s trading. This, he went on, was only to be set aside through an unspecified performance target, with the appellant convincing the council via some form of written process at a point towards the end of the initial twelve months that the reduction should not stand. He was satisfied that in all the circumstances opening until 23.00 hours would not unreasonably impinge upon local living conditions. 

The inspector concluded that the condition was not necessary to protect amenity and it was also unreasonably restrictive towards, and added uncertainty for, the appellant’s operating regime in the future. He varied the condition, deleting the requirement to close at 10pm after twelve months. 

The tests for conditions are given at section 6.1372 of DCP Online.

Double trouble

An inspector has deleted a condition which required that a new bungalow in Cambridgeshire should be one-bedroomed and single storey only, ruling it to be unnecessary (DCS Number 400-027-951).

The appellant suggested that first floor rooms could be incorporated into a chalet bungalow, with no windows facing properties on an adjacent road. The inspector accepted that it was for the appellant to demonstrate, through the submission of detailed plans, whether or not first floor accommodation or more than one bedroom could be incorporated into the bungalow without compromising its design and the relationship with the character and appearance of the area. Any design, the inspector continued, would also need to ensure that acceptable levels of outlook, light and privacy for occupiers of neighbouring properties would be retained. The removal of the condition would not preclude the council from assessing these elements of the scheme at the reserved matters stage.

The inspector concluded that ensuring the precise design of the bungalow responded positively to the character and appearance of the area and protected neighbouring living conditions were matters of detail to be assessed under the reserved matters of scale, appearance and layout. The condition was therefore unnecessary and should be removed. 

Costs were awarded to the appellant.

The tests for conditions, together with further appeal examples, are given at section 6.1372 of DCP Online.

Any port in a storm

Following on from Travelling light, here is another appeal case in which the inspector found reason to depart from development plan policy on internal space standards (DCS Number 400-027-903).

This case concerns an appeal against the refusal of planning permission for the creation of two additional units at a homeless hostel in west London. The units, the inspector noted, would fall some way below the adopted internal space standards in the local plan and would not be provided with any private external space. He also noted, however, that the local plan was clear that development would be required to meet the demands of everyday life for the intended occupants. 

The appellant explained that the units would provide basic emergency living accommodation, offered on a short-term temporary basis for homeless and vulnerable people. The inspector determined that these were relevant material considerations on which he placed substantial weight. He observed that each of the units would provide sufficient room for the occupants to sleep, prepare and eat basic meals, and wash. He found that this would provide a safe and secure environment to meet the demands of everyday life for the intended occupants. Even if occupants were to make use of the facilities for more than a short-term stay, he reasoned, this was unlikely to be comparable to periods of occupation more commonly associated with a C3 use where minimum space standards are of greater significance. 

Allowing the appeal, the inspector concluded that the proposal would not harm the living conditions of future occupiers having particular regard to internal and external space.

There is a section on accommodation standards at homeless hostels at 11.5327 of DCP Online.

Shop early for Christmas

There are sixty-eight shopping days till Christmas. 

Perhaps it is a bit early to be buying a Christmas tree but readers might be interested to hear that an inspector has granted prior approval for a barn conversion in Gloucestershire after ruling that the growing of Christmas trees falls within the definition of agriculture (DCS Number 400-027-574).

The council contended that as the barn was used in conjunction with the applicant’s forestry business it could not benefit from the provisions of GPDO Part 3 Class Q, which requires that the building has been in agricultural use. The appellant argued that the term ‘forestry’ had been incorrectly applied to Christmas trees, in part because of the lack of a clear definition in planning law. The inspector found merit in this argument and therefore considered whether the activity of growing Christmas trees constitutes ‘forestry’ or ‘agriculture’, noting that to qualify for Class Q the site had to have been used solely for an agricultural use as part of an established agricultural unit on 20 March 2013. 

Firstly considering the definition of forestry, the inspector recorded that for the purposes of paragraph 2(9) of Schedule 5 of the 1990 Act, forestry is defined as ‘the growing of a utilisable crop of timber’. The Oxford English Dictionary, the inspector continued, states that it is ‘the science and art of forming and cultivating forests and management of growing timber’. The ‘UK Forestry Standard: the government’s approach to sustainable forestry’ (2017) is consistent in stating that forestry is the science and art of planting, managing and caring for forest. Further, a ‘forest’ is defined by the OED as an extensive tract of land covered with trees and undergrowth, and by the UKFS as generally large tracts of land, under stands of trees. 

Christmas trees are grown for decorative purposes, the inspector remarked, rather than for timber and in this he found a significant difference between the purpose of the enterprise and forestry. He did not consider the small scale of the Christmas tree farm (where approximately 200 Christmas trees were grown) to be a large tract of land, as would be typical for a forest, concluding that the activity of growing Christmas trees on such a scale was not forestry.  

Turning to the definition of agriculture, the inspector noted that ‘agriculture’ is not defined in the GPDO so the definition in section 336(1) of the 1990 Act prevails in the absence of any indication to the contrary. This states that agriculture includes, amongst other things, horticulture, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes. 

The inspector found a strong parallel between growing flowers that are grown for decoration, typically cut at the point of sale, and Christmas trees. He considered that cut flowers could be defined as either market gardening, which is typically a small-scale operation selling fruit, vegetables and flowers, or horticulture, which relates to the cultivation of a garden. The inspector also noted that the HMRC Business Income Manual states that most Christmas tree production is from specialist producers or from farmers who grow the trees as a crop, and that these farms are nurseries and thus fall within the statutory definition of ‘market gardening’. Although developed for a different purpose, the inspector gave some weight to this definition in so far as it was clear that Christmas trees are not, in the opinion of HMRC, born of ‘forestry’. 

Regardless of exactly which agricultural category was chosen, the inspector was satisfied that because the growing of trees was on a small scale and for decorative purposes, and was integrated with indisputably agricultural activities which included raising poultry and producing hay, the overall enterprise was agricultural. 

The inspector concluded that the proposal met the requirements for prior approval and was permitted development under Schedule 2, Part 3, Class Q of the GDPO. 

Section 4.3441 of DCP Online explores the planning definition of agriculture.

An undesirable

The residential conversion of agricultural barns under Class Q of the GPDO is precluded if the location or siting would make it ‘impractical’ or ‘undesirable’. Conversion is often found to be ‘impractical’, but when might a conversion be considered ‘undesirable’? 

In a recent appeal (DCS Number 400-027-779) involving a barn in Yorkshire, an inspector decided that harm to the character and appearance of the surrounding area resulting from domestication of the site and light spillage would be undesirable. 

The inspector found that despite being close to settlements, the area had a dramatic and attractive rural character, with the topography affording wide-ranging views over the rolling upland landscape. The appeal building, he observed, was a prominent, isolated structure sitting comfortably in its setting with its simple agricultural character. He reasoned that domestication of the land and its use as curtilage would potentially result in parked cars, garden furniture, formal planting and means of enclosure, garden ornaments and play equipment. And, even with management of the entrance gate and surface treatment, there would be an incremental domestication of the access from the formalisation of the access point onto the highway and its functional use serving a domestic property. Light spill from the building, he went on, would be evident despite most windows being on the least visible elevation. The combination of these elements, in this particular isolated and exposed location, would have an unacceptable urbanising effect on the landscape, he decided. 

The inspector recognised that the context of the permitted development right conferred by Class Q is such that it is to be expected that buildings will be in a rural setting. Moreover, he acknowledged that the examples in the Planning Practice Guidance of what is meant by ‘undesirable’ do not include the impact on the character and appearance of the surrounding landscape. He reasoned, nevertheless, that the list within the PPG is not a closed list, finding that a degree of planning judgement is required.

Further details regarding Class Q can be found at section 4.3423 of DCP Online.

A short storey

Here’s an interesting remark from an inspector who was determining an appeal against an enforcement notice requiring the removal of a timber play structure from the garden of a house in Lincolnshire (DCS Number 400-027-704).

“The building would not comply with a strict interpretation of criterion E.1(d) as it has more than a single storey. However, as these are three, very small, child-size storeys which, put together, approximate to a normal storey height, this appears to breach the letter but not the spirit of the GPDO.”

As it happened, the inspector found that the structure was not permitted development for other reasons, and so upheld the notice, but nonetheless this offers a useful insight into how the term ‘storey’ in the GPDO could be interpreted. 

Section 4.3421 of DCP Online sets out the permitted development rights for development within the curtilage of a dwellinghouse. 

Cut us some slack

Given the current global pandemic, an inspector found it appropriate to cut some slack for a local planning authority, refusing to award costs against it for failing to determine a change of use planning application within the requisite period (DCS Number 400-027-724). 

The appellant complained that the council’s delays in determining his application for change of use of a property in Cambridge from a six-person house in multiple occupation to an eight-person house in multiple occupation had resulted in unnecessary costs. 

The planning application was dated 15 April 2020, the inspector recorded. Via letter dated 26 May, the council informed the applicant that the application was valid effective from 16 April, which gave a determination date of 11 June. The inspector agreed that a letter confirming the validity of a planning application over five weeks after it has been submitted and made valid is sub-optimal in terms of letting an applicant know when the statutory life of their application has started. That said, he continued, the letter did offer some explanation for the delay, and the date of informing the applicant was still within the eight-week period for issuing a decision. He noted that, as well as a recent IT system upgrade, the council referred to the impact of the Covid-19 pandemic as a delaying factor. He acknowledged that the public health situation not only meant a lot of staff working away from council offices but also movement restrictions had led to site visits being put on hold and in some cases, no doubt, staff redeployed in the community. 

Setting the IT systems issues aside, the inspector thought it would be unfair to levy too much criticism at the council for delays caused by the pandemic. Quite simply, he recorded, the council was but one organisation which could not have foreseen the impacts of what was, and continues to be, an unprecedented global health crisis. He was also mindful that the 26 May letter explained that a revised determination date could be agreed. It struck the inspector that at this point there would already be a backlog of cases either awaiting decision or awaiting their site visit or responses to consultations, any parties inputting to which might have been similarly affected. On the basis of what he had seen it seemed to him that the council had made some effort to explain the situation and what measures could be taken to rectify it, and potentially expedite a decision on the case.

The council made contact with the applicant again on 15 June explaining that tentative steps were being made to resume site visits and to arrange one for the application, the inspector noted. He acknowledged that, again, some further weeks had passed but this was only four days after the end of the statutory eight-week life of the planning application. All things considered, he did not find this unreasonable, frustrating though it would have been for the applicant. 

The appellant submitted the appeal against non-determination three days after the council made contact about arranging a site visit. The inspector accepted that this was the appellant’s right since a decision had not been reached inside the eight-week life of the application, but calculated that this in itself was only seven days after the end of that eight-week life. All things being equal, the inspector declined to say that a period of seven days past the determination date was unreasonable. Nor could he agree that the seven days had incurred any unnecessary costs. He reasoned that the appeal against non-determination was the appellant’s choice and thus costs from that point onwards should be entirely self-borne.

The inspector concluded that the council had not acted unreasonably or caused the applicant unnecessary or wasted expense, and refused to make an award of costs. 

Section 6.1 of DCP Online concerns costs awards. 

Punishing

The quality of planning applications can range from commendable to criminal but there is really never any need for this:

“In response to the Council’s punitive refusal reasons…”

(DCS Number 400-027-567).

Reasons for refusal are covered at section 5.2322 of DCP Online.

A duty of care

Readers might share our disquietude at the following paragraph, taken from an appeal decision relating to the refusal of planning permission for a 60-bedroom care home in Cheshire (DCS Number 400-027-262). 

“The impact of the current Covid-19 pandemic on the need for the proposed care home has been raised by a number of parties. The effects of the pandemic on the care sector are likely to be wide ranging and complex, and it will take time for the impacts to be fully understood. However, the need to provide high quality facilities to care for the ageing population will remain, and there is nothing to suggest that the need for the proposal would be in any way diminished as a result of the pandemic.”

Nonetheless, the long-term demographic impact and consequent commercial implications of Covid-19 must now be a matter of concern for those working in the care sector.

Residential and nursing homes for the elderly are covered at section 11.3 of DCP Online.

Travelling light

Planning permission has been granted at appeal (DCS Number 400-027-526) for the change of use of a first floor tattoo studio in Norwich to temporary visitor accommodation despite concerns about the small size of the property.

The inspector noted that, at 31m², the gross internal floor area of the apartment was significantly below the 37m² required by the local plan to provide satisfactory living conditions. However, he found that the apartment was well-lit and satisfactorily appointed and, located in a city centre location close to services and facilities, would in most other respects offer good living conditions for an occupier. 

In order to address this policy conflict, the proposal sought approval specifically for temporary visitor accommodation as opposed to a permanently occupied dwellinghouse. The inspector agreed that the proposal would provide a suitable quality of accommodation for business or holiday visitors to the city centre, and this would provide a modest but tangible benefit to the local economy. 

The council’s reason for refusal, the inspector noted, hinged on a lack of evidence about the proposed temporary accommodation being any different from a permanent residential studio flat. He noted the case law quoted, which indicated that holiday homes were no different from permanent dwelling use. He reasoned, however, that conditions could limit occupation by the same party to no more than 28 days, specify that occupation should not be as a sole or main place of residence, and require the maintenance of and access to booking records. 

Subject to these conditions the inspector decided that the accommodation could function acceptably as proposed and offer suitable living conditions as temporary occupation, including in respect of providing adequate internal space. He concluded that the proposal would make beneficial and sustainable use of city centre floorspace without conflict with the development plan when considered as a whole. 

Section 10.3383 of DCP Online concerns indoor living space in commercial building conversions.