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Make them pay

Anyone steaming after a written representations appeal site visit because the appellant has not provided access can take comfort from a warning issued by an inspector in a recent appeal decision (DCS Number 400-020-771).

This case involved an appeal against the refusal of a lawful development certificate for the residential conversion of a property in south London. At the time arranged for the site inspection, the inspector related, the door was locked, and the appellant’s agent did not have a key. He continued “I do not know whether the appellant company and their agent have something to hide regarding the existing layout or use of the appeal property. They may have been thoughtless rather than deliberately obstructive, perhaps assuming that an internal inspection would not be necessary; but they should both note that if they are involved in any future planning appeals where an accompanied site inspection is scheduled, they should make arrangements for full access to the appeal premises. Otherwise their behaviour could be considered unreasonable and they could be liable for an award of costs against them.”

Section 5.343 of DCP Online concerns written representations appeal procedures.

Is this fair?

See if you think the following represents consistent decision-making:

The conversion of a mid-terrace house in a student area of Cardiff to a house in multiple occupation for six persons was dismissed at appeal because it was likely to have a materially adverse effect on the character and amenity of the area (DCS Number 400-020-602). The inspector in this case noted that supplementary planning guidance prepared by the council recognised that concentrations of HMOs clustered in small geographical areas can cause problems. Consequently, it set thresholds above which it deemed that the concentration of HMOs would have an adverse impact on the community. In the appeal area the SPG identified an upper threshold of 20 per cent of HMOs within a 50 metre radius of the application site. Beyond that threshold the SPG indicated that HMOs should be resisted. The council’s evidence showed there were 30 properties registered as HMOs within 50m of the site which equated to 79 per cent. The inspector judged that a high proportion of young people, most of whom would be absent in the summer, was likely to affect the provision of community services and add to the imbalance of the housing mix in the area. He found that the cumulative impact of HMOs had resulted in negative perceptions of the area among longer term residents as well as those who might wish to move into the area.

Meanwhile….

The conversion of a mid-terrace house in the same student area of Cardiff to a six-bedroom house in multiple occupation was allowed at appeal, an inspector finding that there would be no significant adverse effects on the character or amenity of the area (DCS Number 400-020-601). In this case the council identified the area around the appeal site as one where 78 per cent of properties within a 50 metre radius of the site were HMOs. The inspector did not consider, however, that there would be a significant adverse effect on the local community, reasoning that many students remain in the local area during holiday periods to undertake seasonal jobs or volunteering activities, and many people living in the local area would take family holidays at these times.  She also reasoned that, because the existing concentration of HMOs already significantly exceeded the SPG threshold, there would be no fundamental change to the existing community balance. She concluded that the effects on the local community, cumulatively or otherwise, would not be significant.

We know that each appeal is determined on its own merits, that each turns on the individual facts of the case, di-blah, di-blah, but really, in all conscience, is this fair?

Section 11.2 of DCP Online concerns houses in multiple occupation.

Lies, damned lies….

It has been said that there are three kinds of lie: lies, damned lies and statistics. The DCP Blog was reminded of this old saw on reading the following paragraph from a dismissed appeal for two houses in south Wales (DCS Number 400-020-748).

“The appellant’s evidence seeks to demonstrate that the traffic generation from 2 three-bedroom dwellings would be similar to that of one four-bedroom dwelling. This was supported by information gleaned from the TRICS® database. TRICS® is a very powerful and flexible system, and allows great variation in the calculation of both vehicular and multi-modal trip rates. It is possible, therefore, that two users of the system, applying different criteria and ranges to a task, may end up producing different results. The correct way to build a selection of surveys is to decide initial criteria and then filter the database to provide a representative sample. The incorrect method is to produce trip rates to fit a predetermined preferred figure.”

In this case the appellant was seeking to prove that the two three-bedroom dwellings proposed would generate no more traffic than one four-bedroom dwelling because permission had already been granted for one four-bedroom dwelling. The clever old council noticed, however, that different regional data or area-based data had been used to calculate the trip rate for three-bedroom dwellings and four-bedroom dwellings. The inspector decided that two dwellings would generate more traffic than the approved single dwelling.

As both the inspector and the council recognised here, statistical information can rarely be accepted at face value, even when bearing a long-established and well-respected stamp.

Section 4.1512 of DCP Online concerns the prevention of problems on the wider road network.

On the nail

An inspector has declined to issue a certificate of lawfulness for the use of a vacant shop in north London as a nail bar, ruling that it would entail a material change of use requiring planning permission (DCS Number 400-020-587).

The inspector noted that the Schedule to Part A of the Use Classes Order shows Class A1 (shops) to include use for hairdressing but that the appellant’s proposed sale of nail art products and related ancillary services use, similar to what is usually described as a nail bar, is not a purpose listed in the A1 shops use class. The inspector reasoned that if not a sui generis use, the proposed use could perhaps fit within a Class A2 use which covers financial and professional services that must be offered to the general public. If that was applicable, he determined, whilst a change of use from an A2 use to an A1 use is permitted by the Order, a change of use from A1 to A2 is not.

At first sight this seems wrong, given the obvious similarities between the cutting and treatment of hair and the cutting and treatment of nails. However, a close reading of the Use Classes Order reveals that the inspector’s decision cannot be faulted. It’s not the inspector, it’s the law that’s daft.

Further information on the use class status of health and beauty salons can be found at section 17.2111 of DCP Online.

On a road to nowhere

Lest readers conclude that the DCP Blog’s new year resolution to be cheerfully optimistic about the future of town planning in a difficult political context didn’t last five minutes, we ought to make clear that this Blog is about an actual road to nowhere. In a recent appeal case the creation of an access road to a potential housing site in Bedfordshire was granted planning permission despite the council’s objection on the grounds of prematurity (DCS Number 400-020-519).

An inspector observed that the site of the proposed road ran between two drainage attenuation ponds connected with a large scale housing development which was currently under construction. It appeared to be the council’s concern, he recorded, that granting planning permission for the road could prejudice the allocation of any land in an as yet unadopted plan and thus undermine the plan-led system. He considered that there was some logic to this assumption albeit he could not see how a road being there would necessarily mean a site would be allocated or not, if it were promoted. He noted that the Framework is explicit on prematurity and sets out that arguments that development would be premature are unlikely to justify the refusal of planning permission. In addition, Paragraph 50 reiterates that the refusal of planning permission on grounds of prematurity will seldom be justified where a draft plan has yet to be submitted for examination.

The inspector acknowledged that it would make little logical sense to grant planning permission for a road that, essentially, went nowhere, acknowledging that its design and appearance would lead to the natural assumption that it would be for a specific purpose which was as yet unresolved. However, there were no planning reasons to refuse it, he found. He recognised that there might never ultimately be a need for the road, reasoning that this would undoubtedly factor in the developer’s decision over whether or not the road was constructed. He was therefore also unconvinced that any perceived lack of need for the road would be sufficient for him to dismiss the appeal.

Sections 7.1316 and 7.1358 of DCP Online discuss the subject of prematurity.

The use of jargon

Taken from a recent appeal decision involving the erection of 102 dwellings on two fields in Surrey (DCS Number 200-008-115):

‘Time depth’, as referred to by the Council, can derive from intactness and continuity of a landscape….

If that’s what they wish to discuss there is plenty of vocabulary available to them within the English language to do so without resorting to the use of jargon. We already have legalese and journalese. We really don’t need planning-ese as well.

Demolishing the opposition

Pointing out that demolition constitutes development, an inspector has issued a certificate of lawfulness confirming the implementation of a scheme for the redevelopment of a pub in Shropshire with seven houses, notwithstanding the council’s argument that a lawful start had not taken place due to non-compliance with a condition precedent (DCS Number 400-020-173).

Planning permission had been granted for “the erection of 7no. two-bedroom terraced houses following demolition of existing public house” in 2013, and was subject to a drainage condition. Demolition of the pub had taken place in July 2013. The inspector recorded that Section 55(1) of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991 makes clear that development means the carrying out of building operations, and demolition of buildings is a building operation.

The inspector reasoned that the demolition of the former public house was an essential component of the permitted scheme. For the purpose of meeting a time-limiting condition imposed on a planning permission, he recorded, development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out. Since demolition is a ‘material operation’ he determined that development of the approved scheme had commenced in July 2013. That development was not in breach of the drainage condition, he decided, having found that it was not a true condition precedent.

He therefore concluded that the commencement was lawful and the council was not justified in refusing to grant a certificate of lawful use or development.

Section 4.3114 of DCP Online covers the subject of demolition.

Hedged about

A Hampshire resident’s argument that his 2m high perimeter fence was permitted development due to the existence of a hedge between the fence and the highway has been kicked to the kerb by an inspector (DCS Number 400-020-431).

Class A, Part 2 of Schedule 2 to the GPDO permits a gate, fence, wall or other means of enclosure up to 1m high constructed adjacent to a highway and in other locations up to 2m high, the inspector recorded. He ruled that the presence of the hedge and the visibility of the fence had limited relevance to whether the fence should be considered to be adjacent to the highway. He reasoned that if the hedge was not in position, and he pointed out that it could be readily removed, the fence would plainly be considered to be adjacent to the highway, appearing to form a perimeter fence to the land. The presence of the hedge did little to change that relationship, he held, mainly altering the view that was available of the fence. He explained that the view available of the fence would be relevant in a planning application to determine its impact on the character and appearance of the area, but it made little difference as to whether it was adjacent to the highway or not.

The inspector declined to issue a certificate of lawfulness, deciding that the council’s decision was well-founded.

Further information on this topic, together with appeal examples, can be found at section 4.3422 of DCP Online.

Social engineering

Perhaps one of the most notable changes which has occurred in society in modern times is the erosion of class divisions, and a recent appeal case offers some insight into how our environment has been deployed to drive this change (DCS Number 200-008-064).

In this case an inspector refused to sanction the removal of a secondary staircase from a listed terrace house in central London. He considered that the terrace exhibited Arts and Crafts influences, noting that part of the ethos of the Arts and Crafts approach “involved the attempt to break down social and class barriers through the reintegration of aesthetic and craftsmanship in order to address the dehumanizing effect that the division of labour was considered to have created.”

It was apparent from the design, the inspector observed, that the architect was forcing interaction between servants and occupiers as only some floors were accessible from the secondary stairs; servants would have needed to use the main stairs in order to service rooms that the secondary staircase did not open out onto. At the same time, he reasoned, the choice of stone over timber for the secondary stair and its cantilevered construction appeared quite extravagant for stairs which were traditionally used by servants and kept out of sight. He concurred with the council that this pointed to attempts by the architects to erode the servant/master distinction prevalent in the pre-First World War period.

The inspector held that the significance of the staircase, and its contribution to the significance of the listed building as a whole, lay in part in the fact that it acted as a lens through which occupiers and visitors to the building could appreciate the social structures of Edwardian England prior to the outbreak of the world war which acted as a catalyst for much social change, and the underlying long term social trends which the war itself magnified into the 1920s and beyond. He decided that the loss of the staircase would reduce the ability of future generations to understand the importance of the secondary stairs within the heritage asset and how this contributed to the significance of the listed building. As such its removal would have a negative impact and would fail to preserve the special interest of the listed building, he concluded.

Further appeal cases involving the removal of staircases from listed buildings can be found at section 27.2333 of DCP Online.

The past is a foreign country

“The past is a foreign country: they do things differently there”, wrote L P Hartley.

At this time of year it is not uncommon to become a bit reflective, musing on all the changes, good and bad, that have occurred over the previous twelve months. Looking back much further than a year, it seems that things were done significantly differently in planning from how they are done now. See whether you think the change is for the better or the worse.

In an appeal against the refusal of a certificate to confirm the lawful commencement of residential development in Norfolk, first granted planning permission in 1966, the appellant argued that during the 1960s reliance was placed upon public professionals and their word, not paperwork, and there was no such thing as a certificate of a start (DCS Number 400-020-369).

The appellant had engaged a chartered surveyor, the inspector recorded, to produce a report which described the practice of the day as being for officers of local planning authorities to witness starts to planning permissions. An inspection did not result in any paperwork. This was verified in a witness statement from a retired town planner who had been a trainee with Norwich City Council during the 1960s. He recalled that, at that time, a ‘start’ might occasionally be noted down for internal use, but he described it as an age when one’s word was good enough.

“Things may well have been done differently then”, said the inspector “but that does not help the appellant discharge the burden of proof”, ruling that assumptions as to what happened were not enough. The appeal was dismissed.

Further information on keeping permissions alive can be found at section 6.34 of DCP Online.