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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.

Join the dots

Obscure glazing is not generally considered a suitable method of mitigating unacceptable levels of privacy in habitable rooms due to the impact on outlook. An alternative method, described in an appeal against the refusal of planning permission for nine houses in north London (DCS Number 200-008-048) might be worth a look on a constrained site.

In this case it was proposed to construct two rows of terraced dwellings some 6m apart with “fritted” glass in the upper floor windows. The inspector explained that “Fritted glass is a proprietary approach which includes a pattern of small circles baked in ceramic on the inside of the glass pane across the whole of the pane. The circles would be 2 mm diameter set in a 2.5 mm grid. These would be black in colour on the inside and, in this case, white on the outside. The technology is designed so that light can pass through the gaps between the circles providing sufficient light within the rooms in question and allowing a view out as the eye filters out the dark and thus recessive circles. However, when viewed externally, the theory is that the eye rests on the reflection of the lighter colour reducing vision through the glass into the room behind, so as to prevent unacceptable levels of overlooking. When compared with “normal” methods of preventing overlooking, such as obscure glazing, the approach is designed to provide higher quality living conditions within the building as the occupants are able to see out.”

The inspector found that the performance of the fritted glass depended on the distance from the window, lighting levels, both internally and externally, and the angle of view: “The closer the viewer is to the window the easier it is to see through into the room behind. When viewed along the length of the windows at an oblique angle the dots apparently joined together to make an effectively continuous translucent covering. However, when viewed straight on it was possible to see through the gaps between the dots to some degree. The degree then depended on the light levels, with the greater the level of light internally the easier it was to see detail within the room.” Overall, he concluded that when viewed straight on more detail could be seen than was normally possible when using obscure glazing.

In the case before him the inspector found that the close face-to-face distance of the two opposite facades would result in unacceptable levels of overlooking. Nevertheless, it might be a solution elsewhere?

The issues of overlooking and privacy are discussed at section 4.136 of DCP Online.

Upstanding principles

An inspector dealing with an appeal against the refusal of a lawful development certificate for a dormer extension at a house in east London has ruled that firewall upstands are not part of the roof (DCS Number 400-020-327).

As with virtually all London terraced properties, the inspector observed, the walls between each dwelling projected beyond the roofline in order to form a fire break. He agreed with a colleague’s reasoning in a similar appeal in 2009 (DCS Number 100-064-232), deciding that the two side walls amounted to part of the framework of the building to which the roof was attached, and were not part of the roof. Consequently, he determined, an extension which built on top of those side walls would amount to an upward extension of the dwelling itself and not just an alteration or extension to the roof. In which case, he found that the council was correct to consider the dormer extension under Class A, of Part 1, Schedule 2 to the GPDO.

The inspector concluded overall that the development would contravene the requirements of Class A and would not amount to permitted development.

Section 12.413 of DCP Online concerns dormer and roof extensions.

Caught by a catch-all

In an appeal against an enforcement notice directed at the residential use of a stable block in County Durham (DCS Number 400-020-325) an inspector found no difficulty in identifying the meaning of ‘residential paraphernalia’.

The appellant argued that the requirement to remove residential paraphernalia, fixtures and fittings, within the building was excessive and also that residential paraphernalia was insufficiently defined. However, the inspector noted that paraphernalia is defined in the Oxford dictionary as “miscellaneous articles, especially the equipment needed for a particular activity”. He was not persuaded that there should be any difficulty identifying miscellaneous articles or fixtures and fittings relating to the residential use of the building and land. He considered the term to be sufficiently precise and not readily open to misinterpretation.

Nonetheless, retrospective permission was granted subject to a unilateral undertaking to remove all items of domestic paraphernalia, including washing lines, children’s play equipment and garden structures and furniture, from specified parts of the site, and thereafter keeping these areas clear of such paraphernalia.

Further appeal examples concerning domestic paraphernalia at residential conversions can be found at section 10.1354 of DCP Online.

Upwardly mobile homes

A proposal for 16 residential park homes on the edge of a village in Oxfordshire was dismissed at appeal in the absence of affordable housing provision, despite the appellant’s argument that the homes would themselves be affordable (DCS Number 400-020-174).

Development plan policy set out that 40 per cent affordable housing would be sought on all sites where there was a net gain of three or more dwellings, the inspector recorded. The appellant argued that because the proposal related to the change of use of the land for the siting of mobile homes and not operational development, that no affordable housing provision was necessary. The inspector, however, judged that the new park homes would for all intents and purposes be new homes. They would be self-contained units of accommodation and would be likely to provide living accommodation and facilities similar to a dwelling with space to cook, wash, sleep and relax. Accordingly, she held that the development plan policies relating to the provision of affordable housing were as relevant as they would be in cases of traditionally constructed dwellings.

The inspector did not doubt that park homes are likely to be cheaper to purchase or rent than traditional dwellings. She accepted that the provision of such homes on the site would therefore be likely to be attractive to certain members of the local community, as recognised in the Mobile (Park) Homes – Briefing Paper, House of Commons Library, to which the appellant had referred her. Nevertheless, there was no mechanism before her to ensure that the park homes would fall within any of the categories of affordable housing set out within the Framework and would remain so in the future. There was therefore no certainty that the development would provide an affordable route to those whose needs were not met by the market, whether that be affordable housing for rent, starter homes, discounted market sales housing, or other affordable routes to home ownership.

The inspector concluded that the park homes would not meet the planning definition of affordable housing, and the absence of affordable housing provision on the site would conflict with the aims of development plan policy which sought to provide homes to address the needs of different groups in the community.

Section 7.3 of DCP Online deals with the topic of affordable housing.