Moving the goalposts

A south Wales council has been shown a yellow card and had a full award of costs made against it after raising a new issue when determining a resubmitted flats scheme (DCS Number 400-028-347).

The proposal concerned the conversion of a flat and workshop, in a dense residential area comprising Victorian terraces, to four flats. In refereeing the appeal, the inspector identified the main issue as being the effect of the proposal on the living conditions of the future occupants of the development, the council’s concerns relating to the layout of the two proposed ground floor flats. She found that the proposal would provide adequate levels of natural light for the occupants of these flats, and, in terms of privacy, that the council’s concerns were wholly without foundation. 

The application subject to the appeal was a resubmission following an earlier refusal of planning permission. The inspector noted that the application had addressed all the reasons for refusal. However, the amended application had been refused in relation to another matter, namely the ground floor layout which had remained unchanged, and which had not previously been objected to. Added to this, several other decisions made by the council involving similar ground floor layouts in comparable circumstances had been approved.

The inspector was clear that the applicant had re-submitted the application in the reasonable belief that the disputed matters had been resolved. The council’s decision to refuse the same ground floor layout could not have been reasonably anticipated, she found. Moreover, she added, the council had adduced very little evidence to demonstrate why a single aspect room would result in a dark or oppressive living environment, especially having already approved other similar developments. Similarly, there was no evidence that demonstrated why there would be any unacceptable loss of privacy. The inspector acknowledged that such matters can have a subjective basis, but considered that the reasoning in the council’s delegated report was largely based on assertion, with little apparent consideration given to the context and environment of the appeal site. She found that the council had acted unreasonably by failing to produce evidence to substantiate the reason for refusal, that was without foundation, and which was inconsistent with decisions on other comparable developments. 

The inspector concluded that unreasonable behaviour resulting in unnecessary or wasted expense had been demonstrated and that a full award of costs was justified.

Section 6.13 of DCP Online concerns unreasonable refusals.