The importance of consistency in decision-making OR a tale of two barns

The residential conversion of a Dutch barn in Somerset under the prior notification procedure was dismissed notwithstanding the council’s failure to give notice of its decision within 56 days (DCS Number 400-010-371).

The inspector ruled that he had to consider the proposal against the regulations in force at the time of the council’s decision. Accordingly, he considered it against Class MB of Schedule 2, Part 3 of the 1995 GPDO. The council was concerned that the proposed building operations went beyond the scope of what was reasonably necessary for the building to function as a dwellinghouse. The appellant contended that there was no mechanism in the regulations for the inspector to consider the council’s concerns by virtue of its failure to give him notification of its decision within the requisite period.  It seemed to the inspector, however, that in order to allow the appeal he must first satisfy himself that the conditions, limitations and restrictions specified in Class MB were complied with. The proposed conversion scheme involved the insertion of a new first floor. The inspector recorded that the insertion of a floor was not included in the list of building operations permissible under Paragraph MB.1(i). This effectively precluded the scheme from being permitted development under Class MB, he determined.

In Bedfordshire, on the other hand, the conversion of a barn into two dwellings under the prior notification procedure was allowed despite highway safety concerns (DCS Number 400-010-429) after the council failed to notify the applicant of its decision within 56 days. The application was made under the 1995 GPDO but the inspector nevertheless treated it as made under the 2015 GPDO. The council identified highway impacts arising from intensification of use, requiring the provision of visibility splays to achieve safe access. The appellant’s visibility plan indicated that the provision of splays would involve the removal of trees and vegetation but no tree survey was provided. Accordingly, the council refused the application on the basis of insufficient information to determine whether the location or siting of the building made it impractical or undesirable for it to change from agricultural to residential use, on the basis of potential harm to the character and appearance of the area. The inspector recorded, however, that the council had failed to notify the appellant of the prior approval decision within the requisite period. This meant, he ruled, that deemed consent was granted in terms of paragraph Q.2 of the GPDO, and that the council could not refuse prior approval.

So, both applications were made under the 1995 GPDO. Both councils failed to notify the appellant within 56 days. The Bedfordshire appellant gains his permission, the Somerset appellant does not. That must, at the very least, appear to be unfair.

The following DCP chapter is relevant: 4.3423

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