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An inspector has granted retrospective planning permission for a treehouse at a house in Hampshire after disagreeing with the council that it was a highly visible, obtrusive and incongruous feature (DCS Number 400-020-057).

Whether the treehouse was ‘highly visible’ rather than just ‘visible’ rather depended on the individual who was looking towards the appeal property’s garden at the time, the inspector mused. Some people passing the dwelling and its garden would see it and others would not, he reasoned, with the distinction between them depending on a variety of factors including their exact position; whether they were looking straight ahead or around them, and whether or not they were actively observing their surroundings with any degree of interest.

As regards ‘obtrusive’, the inspector noted that this term is defined as ‘unpleasantly noticeable’ in the Collins dictionary. He considered that it might well be an apt description in the opinion of some who saw the structure. However, other passers-by might well regard the treehouse as an interesting feature and even welcome it as a reminder that children’s outdoor play still exists in an age when many are obsessed with computer games, tablets and smartphones. Many others, the majority, he suspected, would see the treehouse but have no particular interest and opinion on it one way or the other.

The inspector understood why the term ‘incongruous’ had been used, but asked where else would a treehouse for children’s play normally be positioned other than in a tree in the garden of a house?

The inspector held that the appeal application related to a well-designed and skilfully constructed treehouse that was a development of a good quality, and concluded that it was not harmful to the character and appearance of the street scene.

Other examples of appeals involving treehouses can be found at section 12.837 of DCP Online.

Supply and demand

An inspector determining an appeal against the refusal of outline planning permission for four dwellings in rural Hampshire has distinguished between housing demand and housing need (DCS Number 200-007-965).

Local plan policy allowed for small scale residential proposals of a scale and type that met a locally agreed need, the inspector recorded. The appellants argued that ‘demand’ for housing is synonymous with ‘need’.

The inspector reasoned that the distinction is that if there is a willingness and ability to purchase a home then there is a demand for it. However, if an inability to purchase a home of a required size and type arises, for reasons for example of unaffordability due to low income, then a person does not buy or demand a dwelling, but this does not obviate the housing requirements or needs of that person. She therefore disagreed with the appellants on this point.

In the case before her the inspector concluded that the appellants had not adequately demonstrated a specific and clearly identified unmet housing need in the local area to justify the countryside location of the proposal.

The topic of housing in the open countryside is covered at Section 9.2 of DCP Online.

Rub-a-dub-dub

Hot tubs do not require planning permission, a reporter determining a case in southeast Scotland has ruled (DCS Number 400-019-975).

The reporter identified the key factors he needed to assess in relation to whether the eleven hot tubs, sited at park lodges, required planning permission were their size, permanence and degree of physical attachment to the land (Cardiff Rating Authority v Guest Keen Baldwin Iron & Steel Co Ltd [1949] and Skerritts of Nottingham Ltd v SSETR & Harrow LBC [2000]).

Each hot tub was designed to accommodate up to six people and measured about 2 metres long by 2 metres wide by 1 metre high, the reporter observed. He acknowledged that they required connection to an electricity supply, but, using caravans as an analogy, connecting a structure to existing utilities would not, of itself, amount to a material operation, he determined.

In summary, the reporter found that the hot tubs were not too large and heavy to be moved with relative ease, which was an indication of their lack of permanence. Neither were they physically attached to the decking nor to the ground in any substantial way and no building work was involved in their installation or relocation. On this basis, he found that the hot tubs were chattels (moveable property) and that their installation and relocation did not and would not involve any material operation. Neither, he judged, had any change of use taken place because their use was clearly ancillary to that of the lodges as holiday accommodation or as a permanent residence. Consequently, the hot tubs did not require planning permission, he concluded.

Section 24.2 of DCP Online covers static holiday caravan parks and section 24.1 covers residential park homes.

The heart of the matter

A neat summary of the nature of a condition precedent can be found in an appeal seeking an  LDC to confirm that a house in Bedfordshire had been erected without planning permission (DCS Number 400-019-565).

The original permission for the house carried a condition to the effect that a turning space for vehicles should be constructed within the curtilage of the premises in a manner to be approved in writing by the planning authority before it was occupied. No details for the turning space had ever been submitted.

The inspector recorded that whether a failure to discharge a condition in advance of development starting results in a material breach of control resulting in unlawful development has been considered by the courts. In F G Whitley & Sons v SSW and Clwyd CC [1992], he noted, the Court of Appeal had said that the only question to be asked was whether the development was permitted by the planning permission read together with its conditions. If the development contravened the conditions it could not be properly described as commencing the development authorised by the permission. However, in the more recent R (oao Hart Aggregates Ltd) v Hartlepool BC [2005], he continued, it was held that a distinction has to be drawn between a condition which requires some action to be undertaken before development is commenced and a condition which expressly prohibits any development taking place before a particular requirement has been met. The judge, the inspector explained, took the view that even so it is necessary for the condition both to be expressly prohibitive of commencement of development and to go to the heart of the permission. Only when both tests are satisfied is it a condition precedent to which the Whitley principles apply and where the development would be development without planning permission.

Applying these principles to the case before him the inspector determined that to commence development of the approved dwelling in the absence of agreed details of the turning space would not have been a breach of the condition. Non-compliance with the condition would not have occurred until and if the “premises” (the dwelling) were occupied with those details not having been approved in writing. Thus, he reasoned, a breach of control such as that set out by the appellant was a breach of the planning condition but not one that threatened the heart of the planning permission for the dwelling. Any breach of that condition did not make the whole development unauthorised. The condition, he determined, was not a true ‘condition precedent’.

The inspector concluded that the construction of the dwelling without complying with the condition did not have the effect of making the whole development unlawful. Accordingly, the council’s refusal to grant a certificate of lawful use or development in respect of the erection of a dwellinghouse constructed without planning permission was well-founded and the appeal therefore failed.

More on Whitley and Hart, together with other court cases relevant to this issue, can be found at section 6.342 of DCP Online.

Brexit woes

In Oxfordshire some allowance has been made for the unsettling impact of Brexit, where an inspector has extended permission for the retention of eight staff caravans at an hotel beyond April 2019, allowing the business time to arrange alternative staff accommodation following the country’s departure from the EU (DCS Number 400-019-891).

The inspector considered that the form and shape of the caravans was starkly at odds with the traditional architectural style and palette of materials of the neighbouring hotel and houses in the village, and appeared extremely visually intrusive when viewed against the backdrop of the adjacent hedgerows. Nevertheless, in light of the potential harm to the business, and the forthcoming departure of the UK from the European Union, he took the view that the owner of the hotel should be given an opportunity to undertake an appropriate review of its staff accommodation needs. As a consequence, he considered it reasonable for the temporary period to be extended to two years from the date of his decision.

The inspector concluded overall that material considerations relating to the economic and operational needs of the business outweighed the scheme’s conflict with the development plan, and the corresponding environmental harm generated, but only in the short-term.

Examples of conditions attached to hotel use can be found at section 16.54 of DCP Online.

An axed annexe

An inspector has granted permission for independent use of a granny annexe in the Devon countryside in line with a revision to the NPPF (DCS Number 400-019-912).

Planning permission had been granted in 2003 for the reconstruction of a dwelling with granny annexe. The permission was subject to a condition that the annexe should not be used as an independent unit of residential accommodation separate from the house, in accordance with the development plan which sought to protect the countryside.

The inspector considered that the site was physically disconnected from any community facilities. She noted, however, that applications for proposed development should be determined in accordance with the development plan unless material considerations indicate otherwise, and one such consideration, she held, is the expression of Government policy. She recorded that Paragraph 79 of the updated Framework states that isolated homes in the countryside should be avoided unless, amongst other things, the development would involve the subdivision of an existing residential dwelling. She explained that this exception is a recent addition to the Framework following its revision in July.

The inspector found that the proposal would constitute the development of an isolated home in the countryside for the purposes of Paragraph 79. However, the proposal would divide the existing residential unit into two houses. She determined that there was, therefore, no doubt that it would involve the subdivision of an existing dwelling. Consequently, it was her view that the exception contained in paragraph 79(d) of the Framework, namely that the subdivision of an existing dwelling is acceptable in isolated locations, applied.

The inspector remarked that the Framework sets out a clear and recent statement of the Government’s policy in respect of the acceptability of residential subdivisions in isolated rural locations. As such, she held that it was a material consideration that carried substantial weight in her decision and, in the particular circumstances of the case, outweighed the conflict with the development plan. She deleted the condition.

Further information on granny annexes can be found at section 10.2 of DCP Online.

Marvellous minibeasts

All sorts of fun facts can be derived from planning appeals, and it was the behaviour of parasites that resulted in a successful appeal against the refusal of prior approval for a barn conversion in Devon.

In this case (DCS Number 400-019-582) the council contended that, irrespective of whether the agricultural use was an agricultural business on the relevant date (20th March 2013), there had been an intervening change of use which disqualified the building from conversion under Part 3, Class Q of the GPDO. The council’s concern related to horses which were observed by the case officer in the barn, the inspector noted. The appellant explained that these animals were retired and spent much of their time outside. Information was provided to show that grazing sheep and horses alongside one another within an organic farming system can assist in grassland management and reduce sheep fatalities due to parasites.

The inspector saw nothing to suggest that the horses were being kept for recreational purposes. They were unshod and there were no signs of equestrian paraphernalia or feed. He was thus satisfied that the horses were serving an agricultural purpose, and their housing within the building whilst not grazing did not trigger a material change of use to equestrian or a mixed use. He concluded that the building qualified for change of use to a dwelling under Class Q.

Section 4.3423 of DCP Online concerns change of use under Part 3 of the GPDO.

Something and nothing

This one is a little bizarre but….an inspector has determined that a certificate of lawfulness cannot be used to certify that a site has no lawful use (DCS Number 200-007-885).

The inspector identified the main issue in the appeal as being whether s191(1)(a) of the Act can be used to confirm that a site has a nil use or whether its scope is limited to certifying that an actual existing use as opposed to no use at all is lawful.

The council conceded that the site had a nil use, the inspector recorded. It accepted that it would be lawful for the site to remain unused and that a nil use could not be enforced against. However, it submitted that s191 could only be used to certify that an existing actual use is lawful. S191(1), the inspector noted, provides that: “if any person wishes to ascertain whether (a) any existing use of buildings or other land is lawful … he may make an application for the purpose to the local planning authority specifying the land and describing the use ….”. Turning first to the wording of the statute, the inspector acknowledged that the relevant subsection of the Act makes reference to “any existing use” and it is broad in its scope. However, she did not consider that the word “any” can be divorced from the words “existing use” in subsection (a). The statute specifically requires there to be an “existing use”, she noted, and it was acknowledged that there was no use which could be attributed to the site. The inspector reasoned that whilst nil use is a well-established concept in planning law and parlance that does not, of itself, mean that it comes within the ambit of “any existing use”. It seemed to her that the term nil use is not an existing use at all but rather a shorthand phrase used to describe the situation where there is no actual use of the land that is lawful. Giving the wording of the statute its ordinary meaning, she considered that it must denote a use that actually exists and not the absence of any use at all.

The appellant complained that it was left with no statutory procedure to establish that the site had no lawful use. The inspector acknowledged that although planning legislation is intended to be a complete code that did at first sight appear to be the case in this particular instance. However, she reasoned that the absence of a statutory mechanism for formally confirming that a site has a nil use is perhaps not surprising given that a nil use simply connotes no use at all and as such would not amount to a use to which the s191(2) tests could sensibly be applied. She also reasoned that for a nil use there would be no need for a certificate of lawfulness to safeguard that state of affairs from enforcement action as there would be no breach of planning control against which such action could be taken.

The inspector concluded that the council’s deemed refusal to grant a certificate of lawful use or development in respect of confirmation that the site had a nil use was well-founded and that the appeal should fail.

Yes, this really happened.

Further information on certificates of lawful use or development can be found at sections 4.301 and 5.136 of DCP Online.

Building a picture

Paragraph 197 of the NPPF says:

“The effect of an application on the significance of a non-designated heritage asset should be taken into account in determining the application. In weighing applications that directly or indirectly affect non-designated heritage assets, a balanced judgement will be required having regard to the scale of any harm or loss and the significance of the heritage asset.”

What, though, is a non-designated heritage asset? It’s no use turning to the Glossary for help – it’s not there. As is so often the case in planning it is, therefore, a case of building a picture, and an inspector dealing with an appeal against the refusal of permission for four houses in south London has helped with the work (DCS Number 200-007-876).

The inspector noted that the site was not in a conservation area (and thus was not a designated heritage asset), but it was proposed to be. Having regard to the evidence set out in the conservation area appraisal he was satisfied that the area was of some historical significance. Thus, he declared “it is of sufficient interest to be considered in this appeal as a non-designated heritage asset.”

The inspector judged that the design of the properties was not intrinsically poor but held that it would not integrate suitably with its context. Consequently, he found that the development would appear as an overbearing and discordant feature to the detriment of the street scene and the significance of the non-designated heritage asset.

Section 4.3736 of DCP Online addresses the topic of emerging conservation areas.

A second bite of the cherry

An interesting point concerning the “second bite” provision of the Act has arisen in an appeal concerning an enforcement notice directed at the excavation of a trench at a house in Oxfordshire (DCS Number 400-019-599).

The inspector recorded that Section 171B(4)(b) of the Act provides for the taking of “further” enforcement action in respect of any breach of planning control within four years of previous enforcement action (or purported action) being taken in respect of the same breach. This is known as the “second bite” provision.

An enforcement notice had been issued by the council in December 2016 but had subsequently been withdrawn. The council claimed that the appeal notice, which was identical in its terms to the earlier notice, was issued under the “second bite” provisions of Section 171B(4)(b). The appellants disputed that it was a “second bite” notice, since the first notice was not one that had proved to be defective. The reason for its withdrawal, they said, was that it had not been properly served. As such, they argued, the first notice was a nullity and Section 171B(4)(b) would not operate so as to displace the normal four-year period for enforcement which had accrued by the time the second notice was issued.

The inspector found it unclear whether or not the council accepted that there was some defect in service but found it of little consequence as Section 171B(4)(b) engages when enforcement action is “taken”, and Section 171A(2)(a) makes clear that the point at which enforcement action is “taken” is at the “issue” of the notice, not its service. On the “nullity” point, she recorded that the courts (R (oao Lambrou) v SSCLG [2013]) have taken a liberal view as to the meaning of “purported to take enforcement action”. She reasoned that to take a more restrictive view would be to defeat the purpose of Section 171B(4) which is to provide a local planning authority with a further opportunity to enforce in cases where a notice does not run its course because of some defect or for some other reason. She determined that in the appeal case, even if the notice had been found invalid because of some failure in service, the council had nevertheless “purported” to take enforcement action in respect of the breach to which the second notice was directed when applying a liberal interpretation. The second bite provisions would still have been available, she decided.

The inspector concluded that the appeal notice was a “second bite” notice falling within the provisions of Section 171B(4)(b) and that it followed well within a period of four years from the issuing of the first notice. It was therefore not too late to take enforcement action.

There is further information about the second bite provision at section 4.5354 of DCP Online.