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Money no object

Regular readers might have noticed that the DCP Blog has been running a bit of a thread on the essential need test for farm dwellings (see Plus ça change….). An inspector who sanctioned the retention of a log cabin at a Wiltshire equestrian enterprise has provided further guidance on the extent to which financial viability must be proven (DCS Number 400-019-439).

The council was concerned that the business was not viable, in a general sense, because it only worked for the appellant because of her low overheads and lack of mortgage.

The inspector acknowledged that, although no longer up-to-date policy, there has been a tendency for decision makers to still rely on the advice in the annex to PPS7 on how to establish an essential need. This advice requires evidence for both a functional and a financial test to be provided. He noted that the relevant part of the NPPF is paragraph 55 [this is now paragraph 79] which says that isolated homes in the countryside should be avoided unless there are special circumstances. These include “the essential need for a rural worker to live permanently at or near their place of work in the countryside”. He recorded that since the publication of the NPPF the courts have considered this example in Regina ex parte Embleton PC and David Ainsley v Northumberland CC and Ivor Gaston [2013]. Here, the judge accepted the argument that the test in paragraph 55 of the NPPF was different from PPS7 as it only requires a planning judgement as to whether there is an “essential” need for a worker to be there or not. In particular, it does not require “that the proposal is economically viable”.

The inspector reasoned that all that needs to be determined is whether there is an essential need or not. All that Embleton did, he maintained, was to make this clear and to confirm that the NPPF does not require a proposal to be economically viable. It does not prevent financial evidence from being considered, however. The final balancing act is a planning judgement, where the failure to show financial viability need not be fatal, but should be part of the decision-making process.

The inspector recognised that the council was sensibly concerned that because of viability issues there might be no long term future for the business, and it was reluctant to grant a permanent permission for a dwelling to service a business that might not survive, regardless of the functional need, as this would lead to an isolated dwelling in the countryside against which there is a strong policy objection. However, he thought its concerns were exaggerated. He reasoned that while the business might fail a strict financial test, the purpose of such a test is to ensure the long term viability of the business, which, if it continued to be operated by the appellant, would seem was assured.

The inspector concluded that if the permission were made personal to the appellant, as well as linked to the business, the proposal would accord with development plan policy and paragraph 55 of the NPPF. He attached a condition to ensure that the appellant could only remain in the log cabin while employed or last employed in the business, reasoning that if the situation for the business changed, it was always open to another person who wished to run it from the log cabin to apply to have the condition removed or altered. Subject to conditions he therefore allowed the appeal and granted planning permission for the log cabin.

National guidance on agricultural dwellings is set out at section 9.331 of DCP Online.

No worries

An inspector dealing with an appeal against the refusal of a prior approval application for the residential conversion of a redundant agricultural building at a Sussex farm under Schedule 2, Part 3, Class Q, of the GPDO has confirmed that permission is not granted by default if the council fails to determine the application within the requisite 56-day period (DCS Number 400-019-444).

The inspector recorded that the council had determined that the change of use would require its prior approval, but that the notification had been made after the expiry of the 56-day determination period. Its failure to adhere to the timescale set out in the GPDO did not need to be of any great concern to the council, however, as the inspector explained:

“While the 56 day determination period was not extended by agreement in writing between the parties, pursuant to Article 7(c) of the Order, if the development would not be compliant with the limitations listed in Paragraph Q.1 then the fact that the Council issued its determination out of time would be of no consequence. That is because the Court of Appeal in the case of Patrick Keenan and Woking Borough Council and the Secretary of State for Communities and Local Government [2016] EWHC 427 (Admin), [2017] EWCA Civ 438 has confirmed that if a development would not come within the description for a permitted development stated in the Order, then permission for the development cannot be deemed to have been granted under Article 3(1) of the Order by reason of the failure to issue a determination in time.”

In the case before him the inspector found that the extent of the building operations needed would exceed those reasonably necessary for the building to be converted, and there had been a change from agricultural use, so the conversion would not have been permitted development in any event. He dismissed the appeal.

Further information concerning barn conversions under Part 3 of the GPDO can be found at section 4.3423 of DCP Online.

Mission impossible

In deciding an appeal against the refusal of a certificate of lawfulness for the use of an outbuilding at a house in north London as a granny annexe (DCS Number 400-019-266) an inspector has explained that the decisive factor was not whether the building would be used for purposes incidental to the main dwelling. Rather, he determined, it was necessary to assess whether the building would be used as a physically and/or functionally separate dwelling, or would provide living accommodation that was integral to the use of the existing dwelling.

The plans showed that the annexe would include a bedroom, living room with cooking facilities, and a WC and shower room, the inspector noted. The building would thus contain all of the facilities required for day-to-day private living, so that it could potentially be used and occupied as a separate dwelling. The appellant clarified that the proposal was for the use of the outbuilding as a ‘granny annexe’ by a family member in association with the occupation of the main house.

Setting out the legal background, the inspector recorded that permission is granted under Schedule 2, Part 1, Class E of the GPDO for the provision of buildings within the curtilage of a dwellinghouse where required for purposes incidental to the enjoyment of the dwellinghouse. The term ‘incidental’, he explained, describes uses which are not integral to, but have a functional relationship with the primary use of the planning unit. Examples of uses incidental to the enjoyment of a dwellinghouse might include car parking or a home gym. The Government’s Technical Guidance: Permitted Development Rights for Householders, clarifies that when utilising Class E rights, a purpose incidental to a house would not cover normal residential uses, such as separate self-contained accommodation or use of an outbuilding for primary living accommodation.

The inspector noted that the appeal building would be used for living and sleeping purposes. Since those activities are part and parcel of, or integral to a dwellinghouse use, he reasoned, it was clear that the building would not be used for incidental purposes. However, he continued – and this is the bit to make a particular note of – “it does not follow that there would be a material change of use of the building without the requisite planning permission, because the land already has a lawful residential use.” The decisive factor was not whether the building would be used for purposes incidental to the main dwelling. Instead, the decisive factor was whether the building would be used as a physically and/or functionally separate dwelling, or would provide living accommodation that was integral to the use of the existing dwelling.

In support of his ruling the inspector noted that his approach was consistent with the judgment in Uttlesford DC v SSE & White [1992], where enforcement action had been taken against the residential use of a building permitted for incidental use (as a garage). It was held by the court that, although the garage now had the facilities of a self-contained unit, it nonetheless remained part of the same planning unit as the original dwellinghouse and the planning unit remained in single family occupation. In that situation, a material change of use had not occurred.

The inspector concluded that the use of the outbuilding as described by the appellant would not create a new planning unit because it would not be physically separate or distinct from, or occupied for different or unrelated purposes to, the use of the existing dwellinghouse within the same planning unit. He decided that the council’s refusal to grant a certificate of lawful use or development in respect of the use of the outbuilding as a granny annexe was not well-founded and that the appeal should succeed.

The inspector is no doubt correct in his analysis of the legal framework. This framework, however, gives rise to a continuing difficulty for local authorities, particularly ones where ‘beds in sheds’ are a problem. How do you establish who is and who is not a family member and how do you monitor the day-to-day use of an outbuilding? It seems to us here on the Blog that we might be asking councils to undertake an impossible mission.

Further consideration of this topic can be found at section 10.2 of DCP Online which concerns self-contained accommodation in residential outbuildings and annexes.

Enlarging on extensions

Unsurprisingly, confusion can arise about the meaning of the reference in Class A, Part 1, Schedule 2 of the GPDO to “the enlarged part of the dwellinghouse”. Does it mean just the extension currently proposed, or should it include previous extensions to the dwelling? The answer is that it used to be the latter, then it was the former but now it’s the latter, as helpfully set out by an inspector in a recent appeal decision (DCS Number 400-019-328).

The case before the inspector involved the erection of a first floor extension on top of an existing ground floor extension. He recorded that the April 2016 edition of ‘Permitted Development Rights for Householders – Technical Guidance’ set out the Government’s view that a first floor addition would not be permitted development if it was located on top of an existing ground floor extension which projected by more than 3m from the original rear wall. He went on to explain, however, that that interpretation had been the subject of a legal challenge in The Queen on the Application of Hilton v Secretary of State for the Home Department [2016]. In Hilton it was held that the ‘enlarged part of the dwellinghouse’ should be interpreted as meaning the specific element that was proposed at the time, not taking account of previous extensions.

Subsequent to Hilton, however, the Government issued The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2017. This introduced paragraph A.1(ja) to Part 1 which states that development would not be permitted if “any total enlargement (being the enlarged part together with any existing enlargement of the original dwellinghouse to which it will be joined) exceeds or would exceed the limits set out in sub-paragraphs (e) to (j)”. It seemed to the inspector that the Government had been concerned about the potential implications of the Hilton judgement and made changes to the statutory instrument to the effect that ‘the enlarged part’ of the dwellinghouse should be considered as the total enlargement, including the proposed and any existing extensions. A new edition of the Technical Guidance was also published in April 2017 to confirm that position, which remains in force. So, in the case before the inspector the ‘enlarged part of the dwellinghouse’ comprised the first floor addition and the existing single storey extension taken together.

Good. That’s that sorted. Time for a lie down.

Section 4.3421 of DCP Online concerns GPDO Part 1.

Mind the gap

A useful ruling on the meaning of ‘limited infilling’ can be found in the decision relating to an appeal against the refusal of planning permission for a single dwelling in the Greater Manchester green belt (DCS Number 400-019-367).

The inspector recorded that there was no evidence before him of a definition of ‘limited infilling’ or ‘villages’ contained within the Development Plan or the Framework, or indeed its glossary. He considered that “infilling” implies the development of a site that is between existing buildings. In respect of the plot itself, he observed that it sat between two residential properties on similar sized plots, which formed part of a wider established built form. He therefore considered that the proposal did constitute infilling in a village. In reaching this conclusion, he had regard to Julian Wood v SSCLG, Gravesham Borough Council [2015].

The inspector reasoned that the crux of the matter was whether the proposal was limited infilling in a village. He noted the appellant’s argument that the reference to limited was only concerned with the size of the plot, and he agreed that in his experience, infill proposals are typically only concerned with the size of the plot, not the size of the dwelling. However, he considered that the reference to ‘limited’ in the fifth bullet of paragraph 89* of the Framework requires a consideration of both the scale and form of the development and has to be interpreted in the context of the overall aim of green belt policy, which is to preserve the openness of the green belt. This implies minimising the loss of significant open gaps between buildings, he determined.

The proposed dwelling, however, would extend almost the full width of the plot. Due to its significant width, the inspector held that the dwelling would fail to reflect the generous spacing of the neighbouring properties. Therefore, he found that the dwelling would be in excess of what would be a reasonable definition of limited infilling.  

*In the new NPPF this is Para 145 e).

Section 4.2511 of DCP Online concerns current and emerging green belt policy and guidance.

Cut to pieces

There is always talk about how roads and traffic cut the heart out of our towns and villages. Perhaps that’s why an inspector with a sharp tongue made this incisive observation when putting a proposal for eight dwellings in Nottinghamshire under the microscope: “The proposed site access would be taken directly from Mansfield Road (A60) which dissects the settlement.” (DCS Number 400-019-373).

Information concerning highways and traffic generation issues in rural settlements can be found at section 9.1332 of DCP Online.

Full circle

We appear to have come full circle with regard to the definition of an isolated dwelling. Readers will recall that in Braintree District Council v Secretary of State for Communities and Local Government & Others [2017] the High Court judge found that “isolated” should be given its ordinary objective meaning of, “far away from other places, buildings or people, remote”. Also, that it was subsequently held in the Court of Appeal, in Braintree DC v SSCLG, Greyread Ltd & Granville Developments Ltd [2018] that, “…in its particular context in paragraph 55 of the NPPF, the word ‘isolated’ in the phrase ‘isolated homes in the countryside’ simply connotes a dwelling that is physically separate or remote from a settlement…”

So as long as a site is not far away from other places, buildings or people, planning permission should be forthcoming, right? No, wrong, there’s more to it than that, as a recent appeal case in Devon indicates (DCS Number 400-019-320).

In this case the inspector held that the location of the two proposed dwellings, being adjacent to one row of existing houses, roughly opposite another row of houses, and on the outskirts of the town, could not be said to be physically remote from places, buildings or people. However, she reasoned, it does not necessarily follow that a site that is not ‘isolated’ in the terms of paragraph 55 will be reasonably accessible to services when considered in the context of other requirements of the Framework. She was advised that the site was around 580m from the town centre, which she considered a reasonable walking distance in general terms. Nevertheless, she was concerned about the generally unattractive nature of the route. She considered, for example, that there was substantial potential for conflict between vehicles and pedestrians, even though traffic speeds might be generally low due to the nature of the road. Notwithstanding the reasonably manageable distance involved, therefore, she found that this would make walking an unattractive option for journeys into the town, including for parents with young children or pushchairs. Furthermore, the return journey would involve a significant and sustained uphill section.

The inspector concluded that, while the site was reasonably proximate to the town centre, its degree of accessibility to essential services by alternative modes was significantly limited.

She determined that the site was not a suitable location for dwellings having particular regard to accessibility for future residents to essential services.

National guidance on isolated homes in the countryside is set out in DCP Online section 9.231.

Getaway cars

Airport parking at six former agricultural buildings near Gatwick has been denied a lawful development certificate notwithstanding the appellant’s claim that the use was in line with the authorised storage use of the buildings (DCS Number 200-007-675). The go-to court case in these circumstances is Hickmet, referred to by the appeal inspector.

The inspector judged that the appeal turned on a consideration of firstly, whether the proposed use fell within Class B8, which the parties agreed was the lawful use of the site following the implementation of a 2007 planning permission. If it did not then secondly, whether the proposed use would be materially different from the storage use taking place that had resulted in the implementation of the 2007 planning permission. She recorded that the appellant proposed to use the buildings on site to store cars. He would enter into contracts with hotels that were unable to keep cars on site while patrons were away on holiday. Minibuses would take drivers to the hotels and then the cars would be driven in a convoy during off-peak times to the site and placed in one of the buildings. On average they would be stored for ten days and then they would be returned to the hotels using the same process in reverse. The buildings had the capacity to store 1200 cars.

The council questioned whether the proposed use actually amounted to the storage of cars, referring to the Court of Appeal decision, Crawley Borough Council v Hickmet Limited [1998], which drew a distinction between the storage of cars and the parking of cars. The council argued that the proposal would amount to a parking use and therefore would not fall within the Class B8 use. Furthermore, the parking use would be a material change of use from the existing lawful use as the Court of Appeal in Hickmet described the concepts of storage and parking as being mutually exclusive.

The inspector explained that in the Hickmet case it was held that ‘parking is when a car is left in a convenient place for the resumption of an interrupted journey or the start of the next journey’. It might be ‘short term, overnight or long term’. However, taking a car off the road because, for example, the driver is disqualified, or keeping cars on a site after manufacture before they go to be displayed at the dealers, would be storage. This is because ‘The notion of parking is that it is a temporary cessation from when the vehicle is in motion. A car is still in use when it is parked. It is probably not in use when it is put into store’. The inspector judged that the proposed use was more akin to the description given in the Hickmet case; the cars would be left in a convenient place until the start of the next journey which in all likelihood would be to take the owners home after their holidays. For these reasons the inspector concluded that the proposed use would not fall within Class B8 as it would not be a storage use.

Turning to consideration of whether the proposed use would be materially different from the authorised storage use, the inspector found that there was limited information from the appellant. He claimed the vehicle movements associated with the proposed use would not be materially different from the limit set down in the 2007 planning permission, she remarked, but did not provide any figures to support his assertion. On the evidence before her she concluded that there was insufficient information of any clarity to lead her to the view that a material change of use would not occur if the proposal were to go ahead. She concluded overall that the council’s refusal to grant a certificate of lawful use or development in respect of the use of existing buildings for the storage of cars for hotel patrons was well-founded and that the appeal should fail.

Further court cases relating to airport parking can be found at section 20.5111 of DCP Online.

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.