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Never mind the quality

An inspector has ruled that a Surrey council’s blanket ban on extensions to houses on a recent development in the green belt is “plainly wrong” (DCS Number 400-019-143).

In the case before him the inspector considered that the proposed extensions would be innocuous and inconsequential. Accordingly, he concluded that the scheme would not be inappropriate development in the green belt and would not harm either the appearance and character of the existing building or the rural character of the estate and its setting in the open countryside. There would therefore be no conflict with government policy in the Framework or with the relevant local plan policy.

Notwithstanding the scheme’s compliance with both government and development plan policy, the council had refused permission because the proposal included a two storey extension precluded through a legal agreement concluded at the time of the permission for the estate. The refusal notice said that through an adverse effect on the character and amenities of the area the cumulative effect of two storey extensions would be contrary to the Framework ‘which seeks to protect the openness of the Green Belt’. The inspector took the view that this was plainly wrong in the context in which it was raised. He explained that in Lee Valley Regional Park Authority, R v Epping Forest District Council & Anor [2016], the Court of Appeal endorsed the conclusion of the High Court to the effect that where development is found to be ‘not inappropriate’, applying paragraphs 89 or 90 of the Framework, it should not be regarded as harmful either to the openness of the green belt or to the purposes of including land in the green belt.

The inspector ruled that, in summary, the legal agreement’s blanket ban on two storey extensions ran counter to the well-established principle in the planning system of each case being considered on its individual merits, and in that respect it was unfair and illogical. If the council considered that the estate warranted an extra layer of control over and above the weighing of the balance of public and private interests and the flexibility inherent in development plan policy and the Framework, he continued, he would expect it to prepare and consult on a Design Guidelines SPD, as indicated in general terms in the first sentence of paragraph 62 of the Framework. In this way, a system of qualitative development management rather than quantitative control would then merit significant weight in the decision-making process, either by the council or at appeal.

Section 12.632 of DCP Online provides further information on green belt house extensions.

Toys out of the pram

A rather bizarre situation arose after an Essex council refused to discharge pre-commencement conditions attached to the planning permission for 14 flats on the basis that development had already commenced (DCS Number 400-019-182).

The three conditions required: details of materials and hard landscaping; an investigation of any contamination on the site together with measures for remediation; and details of surface water drainage. “In this highly unusual case,” the inspector recorded “the Council refused all three applications to discharge the conditions on the basis that the actions of submitting the details required by the conditions to the Council, and their subsequent approval, should have been done before the development permitted by the original planning permission was commenced. Although the details were submitted, the development commenced before the Council gave its approval to them. The Council now argue that as the conditions are worded on a pre-commencement basis, they were not in a position to then discharge the conditions.”

The inspector noted that there was no dispute about the acceptability of the details submitted. He had no concerns about them either. He considered that the conditions did not ‘go to the heart’ of the permission but reasoned that it was not the place under a s78(1)(b) appeal to determine whether the original planning permission remained valid, and that s191/192 of the Act remained available to the appellant to establish the lawfulness of the development. Against this background the inspector allowed the appeals.

From a legal standpoint the council might possibly have had right on its side but we would suggest that a more pragmatic and grown-up approach might have been in the public interest in these circumstances.

Information concerning the discharge of planning conditions can be found at section 4.4119 of DCP Online.

A nut case

Paragraph 55 of the NPPF states that “Local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as:” …. (bullet point four)….”the exceptional quality or innovative nature of the design of the dwelling.” A recent appeal case concerning the retention of a beech wood hut at a house in Buckinghamshire (DCS Number 400-019-142) indicates that an exception to green belt policy on curtilage buildings might also be made for exceptional design.

The inspector observed that the outbuilding was located a considerable distance from the dwelling. On this basis, he ruled, it could not be considered as an extension in the way that a detached garage adjacent to a dwelling might be, and it was therefore inappropriate development under the NPPF. However, he found that the visual perception of the loss of openness was limited by the hut’s woodland setting whilst the spatial loss of openness was limited by reason of its small size.

The hut had been designed to resemble a brown beech nut in a natural eco build and had been made from UK sourced wood by hand, the inspector observed. It had overlapping curved timber shingle tiles sculpted around a roughly semi-spherical shaped structure. Internally, the space was roughly oval with windows to look at nature and create a space to write. He considered that it had a fairly unique and quirky appearance and character that blended in with its surroundings. He found that, locally, its whimsical natural charm added considerably to the character and appearance of the area. This was appreciated in filtered views by users of a public footpath and from neighbouring properties. Consequently, he considered that the hut was of considerable visual interest.

The inspector concluded overall that although the hut was inappropriate development there were very special circumstances to permit it.

Discussion of the nature of “very special circumstances” can be found at section 4.2514 of DCP Online.

What’s in a name?

Readers might be aware that Ed Sheeran’s plans to build a private chapel on his Suffolk estate were set back due to the possibility of there being great crested newts on the site. He’s not on his own – a proposal for an otherwise satisfactory family dwelling in Cheshire was turned down at appeal because it would result in the loss of GCN terrestrial habitat (DCS Number 400-019-111).

This is purely conjecture but we are just wondering whether it isn’t something to do with the name. You can see how calling a creature “great” and “crested” might lead it to think a lot of itself. Would things have been different if we had stuck to the species’ alternative name – the warty newt?

Section 4.1432 of DCP Online concerns wildlife and habitat loss.

All washed up

Now that laundrettes are an endangered species it seems a shame that planning legislation does little to protect the small number remaining.

A recent appeal case (DCS Number 400-018-997) shows just how easy it is to gain consent for residential conversion. This case concerns a prior approval application under Schedule 2, Part 3, Class M of the GPDO for conversion of a former laundrette in east Sussex to a flat. The inspector acknowledged that there was common thought amongst local residents that the laundrette had been a valued service, popular with young and old alike. The appellant explained, however, that it had closed in October 2017, and maintained that the costs of equipment modification and refurbishment works to the premises brought into doubt whether it would re-open. The inspector considered that this position had a significant bearing on the case as, should the impact of the change of use on the local laundrette service be seen as particularly undesirable, the GPDO stipulates that this is only a consideration where there is a reasonable prospect of the service being provided. In addition, whilst he had found that the loss of the laundrette would be felt locally, he also accepted that customers would be able to reach an alternative facility by bus. He concluded that the appeal should be allowed.

Clearly, the GPDO is likely to be relatively ineffective in protecting existing laundrettes since the lesson here is to remove any fittings and equipment before applying for prior approval for residential conversion.

Further information concerning Class M can be found at section 4.3423 of DCP Online.

For the sake of completeness

Before moving too far forward with an amendment to a planning proposal it’s worth remembering that, in planning law, the status of a completed building often differs from that of a partially completed building. The following case in south Wales sets out a bit of relevant case law.

In this case an inspector upheld an invalidity notice (DCS Number 400-018-769), ruling that an application for an additional floor on a partly constructed student accommodation block must relate to the whole building rather than the revised elements only.

The council had refused to validate the application on the basis that the proposal represented so substantial a change to the extant permission as to constitute a new scheme. The essential difference between the parties was whether the applicant had to apply for planning permission for the whole of the main block. The inspector referred to Sage v Secretary of State for the Environment, Transport and the Regions and others [2003] in which it was held that there is a distinction in law between a case where the building has been completed and is then altered and one where it has not been completed.

The inspector ruled that where a building has not been completed, an application which seeks to alter that building must take account of the entire building operation then proposed. He reasoned that such an approach is entirely logical; if planning permission were granted for part of a building which, if implemented, would result in a building different from that originally permitted and prevent the original building ever being completed, then the resultant building would clearly constitute a different development, not an altered version of the uncompleted original building, and should therefore be considered on its own merits. The appeal was dismissed and the notice of invalidity upheld.

Section 5.151 of DCP Online concerns the acknowledgement and registration of planning applications.

Off the wall

Perhaps an inspector wasn’t looking on the bright side when he denied advertisement consent for the retention of a painted sea lantern on the front of a tattoo parlour in Dorset, ruling that it harmed the grade II listed building (DCS Number 400-019-044).

The inspector observed that the artwork tricked the eye by making the first floor oriel window appear as part of a larger three-dimensional lantern. He held that the effect was to visually alter the shape of this architectural feature, detracting from its form. In addition, he noted that the painted chain cut across decorative brickwork below the parapet, making the architectural detailing on the building appear somewhat awkward, rather than being an integral part of the building design. He understood that the design was intended to represent the historic association of the town with the sea. However, whilst noting the quality of the artwork, and the fact that the works were all cosmetic, he decided that the design did not respect the features of historic and architectural interest that the host building possessed.

We might be on our own with this one, given the listed status of the building, but this was not a dead-of-night job by a wannabe street artist but a carefully executed embellishment of the appellant’s own premises. Maybe some art, some colour….some joy!…is just what is wanted to return some life to our ailing seaside resorts.

Further examples of appeal cases concerning advertisements affecting heritage assets can be found at section 30.0332 of DCP Online.

Walking on water

If you told the man in the street that a boat floating on water can entail the change of use of land he’d probably think you had a screw loose, but see what you make of the following ruling.

The use of a barge in Essex as a clubhouse, bar, and restaurant has been required to cease after an inspector found that a material change of use had occurred (DCS Number 400-018-999).

The appellant maintained that as the barge was a floating structure, it was not subject to planning control, and an additional wooden structure built on top did not require planning permission. The inspector recorded, however, that the judgment in Thames Heliport Ltd v Tower Hamlets London Borough Council [1997] is authority that the use of a vessel on water is capable of amounting to a material change of use of land.

The inspector explained that whether planning permission was required depended on whether or not the barge was a building as set out in section 55 of the Act, and a building is defined by section 336 as including any structure or erection and any part of a building, but not plant or machinery comprised within a building. R (oao Hall Hunter Partnership) v FSS & Waverley BC [2007] is authority that there are three primary factors relevant to the question of whether there was a building; size, permanence and degree of attachment to the ground.

The inspector noted that considerable works had been undertaken to the barge to transform it. She considered that it now had the size, bulk and mass of a building, being two storeys high and much larger than any of the small boats within the marina and boatyard.

The barge had not been moved for at least 18 years and no longer had an engine. Having remained in the same place for a very considerable period of time, the inspector reasoned that the barge had not been used as a moveable vessel. It had been in office use in association with the marina for much of that time, a use which required it to be static and was consistent with a use as though a building. These were all factors indicating its presence as a permanent feature at the marina, she determined. The presence of mooring platforms added to the permanency of the barge in the location.

Of greater significance, the inspector held, was the attachment of utilities. Cables for the supply of water, electricity and telephone ran from the barge underground through the sea wall to the main distribution point, and the barge was connected to a wastewater treatment plant on the quayside.

As a matter of fact and degree and having regard to the size, degree of permanence and physical attachment, the inspector found that the barge should be regarded as a building. She considered the works which had been carried out with regard to the structure were akin to building operations and, as such, amounted to development for the purposes of section 55(1) of the 1990 Act. The works therefore required planning permission by virtue of section 57. She concluded that the matters alleged in the enforcement notice constituted a breach of planning control.

Somehow it all seems so much more plausible when an inspector says it.

For more information on the mooring of craft and floating structures see section 4.3113 of DCP Online.

Solemnly and sincerely

Sometimes the art and science of planning can lie in being able to recognise when something is not quite right. A useful pointer with regard to the assessment of legal evidence can be drawn from a recent appeal against the refusal of a lawful development certificate for the use of adjacent land as a garden extension at a property in County Durham (DCS Number 400-019-049).

The inspector says “Contrary to the appellant’s assertions, the so-called affidavits provided do not appear to constitute statutory declarations as they do not contain the necessary form of wording set out in the Schedule to the Statutory Declarations Act 1835. Furthermore they appear to have been witnessed by a resident of” [the appeal property] “rather than a solicitor or commissioner for oaths. I therefore afford these documents limited weight given that there can be no sanction such as a fine or jail term if found to be untruthful.”

So, while we don’t recommend that you try to usurp the role of a planning lawyer, a useful preliminary test for a statutory declaration is as follows:

Firstly, put “Schedule to the Statutory Declarations Act 1835” in your browser. Skip the bits about church sidesmen, turnpike trusts and pawnbrokers – you probably won’t need that – and go straight to the wording at the bottom. It’s only three lines. Compare and contrast with the wording in front of you. Secondly, check if the document appears to be properly witnessed. Same surname as applicant/appellant or illegibility are not good indicators.

Examples of the use of statutory declarations can be found at section 4.535 of DCP Online.

Holiday time

It’s high summer so it must be time to talk about holiday cottages….

Notwithstanding his determination that a holiday cottage at a golf club in Bedfordshire was a dwellinghouse, an inspector decided that the necessary period for its residential occupation to become immune from enforcement was ten years rather than four (DCS Number 200-007-562).

Planning permission for seven holiday cottages had been granted subject to a condition that they should not be occupied by any one person for more than 28 days in any calendar year.

The council was of the view that the ‘holiday cottages’ would amount to dwellinghouses, that the description of the development alone would not be sufficient to restrict the use for holiday purposes, and it was the condition that was the defining factor. On that basis it contended that the residential occupation was in breach of the condition.

The inspector recorded that the question of whether a holiday unit is materially different from a dwellinghouse has been the subject of numerous judgments. He noted that in Sheila Moore v SSCLG [2012], the judge stated that whether the use of a dwellinghouse for commercial letting as holiday accommodation amounts to a material change of use will be a matter of fact and degree in any given case. There should be no assumption that the use of a dwellinghouse as holiday accommodation will always amount to a material change of use or that use of a dwellinghouse for commercial lettings can never amount to a change of use.  Having regard to the layout and use of the properties it appeared to the inspector that the seven units were undoubtedly dwellinghouses. He was not satisfied that there would be any substantive difference in the character or impact of the units whether they were in use for holiday accommodation or for permanent occupation. Accordingly, he was not satisfied that the description of the development alone would have been sufficient to prevent occupation as a permanent dwelling. In effect, he reasoned, planning permission was granted for seven dwellinghouses. A dwellinghouse falls within Class C3 of the UCO and, if no condition were in place to restrict occupancy, it appeared to him that the council would have been unable to enforce against any use that fell within that Class.

The inspector further recorded that the time limits for taking enforcement action are prescribed by section 171B of the Act. Subsection (2) states that where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach, and subsection (3) states that in the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach. He concluded that the planning permission had effectively granted consent for the erection of seven dwellinghouses. The use of those dwellinghouses was controlled by the condition. The breach had occurred when the appeal property was occupied in breach of that condition. Since that did not amount to a change of use subsection (2) of s171B was not applicable. Rather, the relevant time period for taking action was that set out in s171B(3) which is ten years. There was no dispute that the appellant was unable to demonstrate that the breach had continued for ten years at the time the notice was served, and accordingly the appeal failed.

We wish we could tell you that the situation was more clear cut but like many things in planning, therefore, the difference between a dwellinghouse and a holiday dwelling is fact and degree, fact and degree.

See section 9.541 of DCP Online for further information on holiday occupancy conditions.