In granting permission for a crematorium in a Lakeland area of outstanding natural beauty (DCS Number 200-004-572) an inspector referred to the requirements of the Cremation Act 1902. This Act advises that sites should be at least 200 yards from any dwelling unless the owner, lessee or occupier has given their consent in writing, and at least 50 yards from a public highway. He reasoned that whilst this would not necessarily preclude urban sites there would seem to be support for the contention that crematoria should be situated within rural locations and in all likelihood within the open countryside.
Posts Categorized: Cut-out-and-keep
An enforcement notice requiring the demolition of a structure on a landholding in Somerset was upheld, (see DCS Number 200-004-565), an inspector deciding that although it might be capable of agricultural use it was not designed for agriculture.
An enforcement notice directed at the residential use of a blockwork building to the rear of a terrace house in north London was quashed, an inspector finding that it had acquired immunity after having been in use as a dwelling for four years (DCS Number 200-004-558). He noted that deliberate concealment of a breach of planning control enables enforcement action to be taken after the expiry of the prescribed periods (Welwyn Hatfield BC v SSCLG & Beesley), and the council argued that a number of alleged acts of deception had been undertaken by the appellant. These were the appellant’s failure to pay council tax for the building, the failure to apply for planning permission or building regulation approval, and the retention of the garage door in the rear elevation of the building. The inspector considered, however, that the appellant’s failure to pay council tax and the failure to apply for planning permission or building regulation approval are not uncommon among those who build or extend houses or convert buildings into houses without planning permission. He determined that they were passive acts of omission, rather than a Welwyn type positive deception that would disentitle reliance upon section 171B (1) of the Act. He also took the view that the retention of the garage door was an attempt at keeping a low profile, rather than a positive act of concealment.
The effect in terms of noise for residents at existing properties where tandem and backland development is proposed can be difficult to judge. In a case concerning a proposal for seven to eight dwellings on a backland site in Leicestershire (DCS Number 400-010-162), however, the inspector had the assistance of supplementary planning guidance.
The following case (DCS Number 400-010-134) is interesting because it concerns a housing policy which was drafted in such a way that it was able to accommodate a change in housing need which has occurred over time.
A Dorset council ran into trouble after refusing a prior approval application for a barn conversion (DCS Number 400-010-112). The council asserted that the building was not being used solely for agriculture as part of an established agricultural unit on 20 March 2013 and thus failed to meet the criterion set out in paragraph Q.1(a)(i) of the GPDO. The inspector pointed to paragraph Q.1(a)(ii), however, which meant that if the building was not actively in use on 20 March 2013, but agriculture was the nevertheless the last active sole use, then the change of use would comply with the requirements of the GPDO. He found no evidence to suggest that the last active sole use was not agriculture.
Here is a cut-out-and-keep case which provides evidence not only that permitted development rights do not apply to a development which has yet to be completed, but also that they cannot apply in anticipation of completion of the development.
The following case concerns the construction of a basement under a new house in the Royal Borough of Kensington and Chelsea. Readers might be aware of the Borough’s progress towards the earth’s core in the wake of ever increasing surface land and property values, and a Compass search will reveal innumerable cases where neighbours have raised concerns about the effect of basement construction on the structural integrity of their properties. In DCS Number 400-010-067, however, it was highway safety which was the principal matter of contention.
The owner of a semi-detached locally listed cottage in east London who built a three-storey rear extension in non-matching materials failed to convince an inspector that the development would comply with a condition requiring matching materials once he had cleaned up the bricks on the original house (DCS Number 400-009-655). Aside from the fact that the design of the extension did not comply with that granted planning permission, it had been constructed in new yellow stock bricks. The old bricks on the main building were yellow stock bricks but were now well weathered and significantly darker than when they were originally laid, probably well over 100 years ago. The inspector reasoned that if the appellant did manage to clean the old bricks successfully then the materials might match. However, no sample panel of cleaned bricks had been prepared and he simply did not know for sure if it would be an acceptable way forward. He could not, therefore, grant planning permission on this basis, he decided.
- Minor material amendments
In a mixed use development in southeast London an inspector sanctioned a raft of changes to a building which had already been constructed as minor material amendments (DCS Number 400-008-304). A number of changes to the building had been carried out during construction ostensibly due to the gradient in the road. These included the re-siting of the access, alteration of the parking layout, architectural alterations, and an increase in floorspace of 66 square metres. The inspector disagreed with the council’s claim that the cumulative effect of the changes was substantial. An interesting point to note is that the inspector compared the scale of the changes against the overall scale of the scheme, noting that the increase in floorspace would be only four per cent of the total.