Posts Categorized: Current thinking

A trail of lawsuits

You don’t have to look far to find an example from Donald Trump’s trail of lawsuits, referred to by President Obama in his farewell address in Philadelphia. An inspector has recently cited Trump International Golf Club Scotland v Scottish Ministers [2015] in declining to issue a lawful development certificate for the retention of a rear extension at a house in east London (DCS Number 400-012-343).

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Burden of proof on council in GPDO retail conversions

In allowing the change of use of a music shop and an estate agent’s in north London to two flats under the GPDO (DCS Number 400-012-173) an inspector has highlighted the difference in the level of supporting evidence required between the prior notification procedure and the planning application procedure.

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No kidding, Sherlock

The parties at appeals relating to residential development will often press to argue about whether or not the planning authority can show a five-year housing land supply. In relation to an appeal for up to 61 dwellings in Derbyshire the inspector pointed out, however, that it was not for him to carry out a forensic analysis of the housing statistics (DCS Number 200-005-175). In support of this stance he referred to the Planning Practice Guidance which advises that up-to-date housing requirements and the deliverability of sites to meet a five-year supply will have been thoroughly considered and examined prior to adoption, in a way that cannot be replicated in the course of determining individual applications or appeals where only the appellant’s evidence is likely to be presented to contest an authority’s position. Similarly, the Court of Appeal in St Albans City and District Council v Hunston Properties Ltd and Secretary of State for Communities and Local Government, [2013]  found that, “It is not for an inspector on a Section 78 appeal to seek to carry out some sort of local plan process as part of determining an appeal, so as to arrive at a constrained housing requirement figure. An inspector in that situation is not in a position to carry out such an exercise in a proper fashion, since it is impossible for any rounded assessment similar to the local plan process to be done. That process is an elaborate one involving many parties who are not present at or involved in the Section 78 appeal.”

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The pendulum swings

The oscillations of the planning system in accord with contemporary political thinking are always fascinating to observe.

It seems like only yesterday that every last back garden was being sized up for its potential for residential development, residential curtilages being identified as brownfield land and accordingly suitable to make a contribution towards the nation’s housing land supply. In fact, it was in March 2012 that the pendulum reached the limit of its arc, garden grabbing having got out of hand, and the NPPF defining previously developed land as excluding land in built-up areas such as private residential gardens.

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Housing land supply – you’re on your own

An inspector has allowed 30 houses outside a village in Cambridgeshire despite the council having an agreement with a neighbouring authority in respect of housing land supply (DCS Number 400-011-553).

Whilst acknowledging that it could not deliver a five-year supply of housing land, the council indicated that if looked at in the wider area, a five-year housing land supply could be shown, and pointed to a memorandum of understanding between the two councils. The inspector confirmed, however, that paragraph 47 of the NPPF is directed to each local planning authority, and it was not a case where a joint local plan had been submitted for consideration. Therefore, there was a requirement that each local planning authority individually needed to show a five-year supply of housing land.

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Obesity and the origins of planning

Retrospective permission for a pizza and kebab takeaway in Gateshead was rejected, an inspector supporting the council’s endeavours to address obesity in its area (DCS Number 400-011-493).

The inspector noted that paragraph 7 of the NPPF explains the need for the planning system to support strong, vibrant and healthy communities by creating a high quality built environment that reflects the community’s needs and supports its health, social and cultural wellbeing. Paragraph 69 reiterates that the planning system can play an important role in creating healthy, inclusive communities. In line with this objective, a core strategy policy stated that the wellbeing and health of communities would be maintained and improved by controlling the location of, and access to, unhealthy eating outlets.

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Shakespeare 400

As we all know, 2016 marks the 400-year anniversary of the death of William Shakespeare. Ever topical, the DCP Blog is delighted to be able to report an appeal decision in which The Bard gets a mention (DCS Number 400-011-383). This case concerns the residential conversion and extension of a listed timber-framed barn in Stratford-upon-Avon. The property was originally a house, reputed to have been owned by Richard Shakespeare, and possibly the birthplace of William Shakespeare’s father and uncle. The appeal proposal involved adding a large, two-storey extension that would increase the volume of the barn by over 80 per cent. The inspector judged that an extension of such a size would be out of keeping with the existing size and scale of the listed barn and dominate its appearance to an unreasonable extent. He considered that the barn was a significant local heritage asset not only because of its considerable age and traditional appearance but also as a result of its possible historical associations with William Shakespeare’s family. The public benefits of the scheme, which included the repair of the deteriorating barn, were outweighed by the harm, he concluded.

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Further examples of the easing of rural restraint policy

Local need policy inconsistent with NPPF

A new dwelling was allowed in a Devon village, an inspector deciding that there was no need for local need to be proven (DCS Number 400-010-243). The inspector accepted that the village did not have a defined development boundary, nor was it listed as a settlement within the core strategy. Core strategy policy stated that development would only be permitted outside the listed settlements where it could be delivered sustainably and also in response to a demonstrable local need. He ruled, however, that reference to a demonstrable local need in the policy was a more restrictive approach than the presumption in favour of sustainable development advocated at paragraph 14 of the NPPF. The policy was therefore not wholly consistent with the NPPF, he determined.

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