A significant departure

An inspector dealing with an appeal against a condition attached to the planning permission for a replacement dwelling in Staffordshire (DCS Number 400-031-583) has drawn attention to a significant change in the NPPF.

The inspector related that the disputed condition removed certain permitted development rights from the proposed dwelling, including for all extensions and alterations above ground floor level or above four metres in height. The reason given for the condition was to comply with development plan policies for the erection of replacement dwellings and to safeguard the character and appearance of the locality.

The site had been subject to a previous appeal that also concerned a replacement dwelling. That scheme, the inspector recounted, was found to be far more obtrusive in the landscape than either the existing dwelling or a separate scheme which had planning permission. Accordingly, the appeal had been dismissed, in part due to a conflict with local plan policy which stated that a replacement dwelling in the countryside would only be approved where the proposal was not significantly larger or more intrusive in the landscape than the dwelling it replaced. In coming to that view, the previous inspector did not accept the argument that the proposed dwelling would be similar in scale to the fallback position established by the extant permission plus permitted development rights. In this regard, it was reasoned that the proposed dwelling would also benefit from permitted development rights, and it would not be reasonable to remove these by way of a planning condition because Planning Practice Guidance stated that “conditions restricting the future use of permitted development rights or changes of use will rarely pass the test of necessity and should only be used in exceptional circumstances”.

The present inspector noted, however, that that guidance has now been superseded and no longer forms part of PPG. Instead, the most recent version of PPG states that “conditions restricting the future use of permitted development rights or changes of use may not pass the test of reasonableness or necessity. The scope of such conditions needs to be precisely defined, by reference to the relevant provisions in the Town and Country Planning (General Permitted Development) (England) Order 2015, so that it is clear exactly which rights have been limited or withdrawn”. He held that this represents a significant departure from the guidance considered by the previous inspector. In particular, there is no longer a requirement to demonstrate “exceptional circumstances” in imposing such a condition.

The inspector found that the disputed condition allowed for greater control to be applied to the size and bulk of the replacement dwelling. This was necessary to ensure that the proposal did not become more obtrusive in the landscape than either the existing or approved dwelling. Were it to be removed, he reasoned, the proposed dwelling could be significantly extended so that it would be comparable in scale to the scheme rejected by the previous inspector. 

The current appeal inspector determined that the disputed condition was precisely defined, and was clearly necessary in order to ensure that the proposal complied with development plan policy. Dismissing the appeal, he concluded that the condition was both reasonable and necessary in order to preserve the character and appearance of the area.

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