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Gone up in smoke

A central London café has failed to convince an inspector that shisha smoking at the front of the premises is lawful, the inspector distinguishing shisha smoking from cigarette smoking (DCS Number 200-006-729).

The council maintained that shisha smoking was not incidental or ancillary to the principal use as a sandwich bar/café, but had become a separate use within a composite planning use as a sandwich bar/café/shisha smoking establishment.

The inspector took the view that shisha smoking differs from other forms of tobacco smoking in a number of ways. He noted that it entails use of special equipment, principally shisha pipes and a charcoal brazier, and that this equipment is effectively hired by customers, and prepared for use by waiters. This differs from other forms of smoking, he reasoned, which do not require special equipment, and are generally portable for the smoker. He noted that the smoking of cigarettes and cigars can be carried on in any place where it is lawful, and there is no need to visit a particular place offering a special service. In addition, in contrast with going out for a meal and perhaps having a cigarette, shisha smoking appeared to him to be very much a social activity in itself, sometimes with pipes being shared, and with food often comprising little more than a snack.

In terms of revenue, it appeared to the inspector that shisha sales had come to be a predominant aspect of the business, and this was supported by the proportion of customers observed to be smoking shisha. The relatively limited number of food items on the menu, the minimal kitchen facilities, and the presence of staff carrying out quite specialised shisha duties gave further indication that shisha smoking had become an integral part of the establishment’s offer, quite over and above what might be considered as a normal ancillary or incidental use. As a matter of fact and degree he considered shisha smoking had become an identifiable separate element in the mixed use of the premises.

The inspector concluded that shisha smoking had become a distinctly separate activity from those that would be considered as normally ancillary or incidental to the lawful sandwich bar/café use of the appeal premises. As a result a new sui generis mixed use as a sandwich bar/café/shisha smoking establishment had been created. This was a material change of use for which no planning permission had been granted and he therefore refused to issue a certificate of lawfulness.

The following DCP section is relevant: 4.321

Back to basics

In addressing an appellant’s argument that a 2005 planning permission for a residential barn conversion in north Yorkshire authorised the demolition and rebuild of the building, an inspector has taken us back to basics (DCS Number 200-006-732).

The site had been occupied by a brick barn and a portal frame building but these had substantially disappeared through demolition and storm damage. The appellant argued that the lack of a condition attached to the 2005 permission requiring adherence to approved plans was significant and recognised that considerable rebuilding work was likely to be needed.

The inspector remarked that “Generally, in interpreting planning permissions, the basic principle is that a permission should stand by itself and the meaning be clear within the ‘four corners’ of the document. The public should be able to rely on a document that is plain on its face without having to consider whether there is any discrepancy between the planning permission and the application. In Miller-Mead v Minister of Housing and Local Government [1963], Lord Denning, Master of the Rolls found that ‘…a grant of planning permission runs with the land and may come into the hands of people who have never seen the application at all. It cannot be cut down by reference to the application…’ ”. The implications, he explained, were that any controls or limitations attached to a planning permission need to be clearly and precisely stipulated within the four corners of that permission.

The inspector noted that the approved drawings showed little in the way of reconstruction work to the walls of the original barn. In 2005 a condition requiring adherence to drawings was not routinely imposed on planning permissions but was ‘taken as read’, he recorded. He considered that it was therefore not reasonable to assume that there was any specific recognition that demolition would be necessary. In any event, he continued, the general principle is that the intention of either the developer or the council is immaterial; it is the content of the documents that were placed on the planning register that is relevant.

The inspector found that what was left of the structure on site was incapable of conversion and declined to issue a lawful development certificate.

The following DCP sections are relevant: 10.111 and 10.139

Open all hours?

Given that most of us have access to electronic means of communication at all times of day and night there is perhaps a risk of forgetting that planning legislation still recognises ‘business hours’. A planning authority in Sussex was reminded of this when an inspector dealing with an appeal relating to an agricultural barn found that its decision at 17:45 requiring prior approval was not issued “within the prescribed 28 day deadline, having regard to normal business hours” (DCS Number 400-016-112).

The inspector recorded that there is a 28 day determination period running from the date of the receipt of the application for the authority to determine whether prior approval is required or not. Paragraph 2(7) of Schedule 1 to the Town and Country Planning (Electronic Communications) (England) Order 2003 and Article 2(9) of the GPDO are clear, he noted, that communications received outside of normal business hours shall be taken to have been received the next working day. Furthermore, section 336(4A) of the 1990 Act indicates that an electronic communication, used for the purposes of giving a notice, shall be taken to have been received the following day if received outside of that person’s business hours.

The appellant’s agent indicated that his normal business hours were up to 1730 hours during the working week. The planning authority’s point that the agent’s business hours were not published on the company website or other media received little sympathy from the inspector. “….this merely emphasises the need to check them further if such an important notice was required to be sent within a prescribed deadline”, he ruled.

The following DCP section is relevant: 4.3425


Local authorities will know that it is not always easy to get developers to tidy up after they have finished building. Accordingly, here is an appeal decision that might come in handy.

An inspector dealing with an enforcement appeal in south Wales ruled that a permitted development right to use land temporarily in connection with the construction of a dwelling ceased with the completion of that development (DCS Number 400-016-173).

The enforcement notice alleged a material change of use of the land by placing a large lorry container for storage of building materials, and the depositing of building materials and rubbish. The appellant argued that the development constituted a temporary use of the land whilst building operations were being carried out on the adjoining land, and that as such it comprised permitted development under the Town and Country Planning (General Permitted Development) Order 1995 (the GPDO).

The inspector recorded that Schedule 2(4) Class A of the GPDO permits “the provision on land of buildings, moveable structures, works, plant or machinery required temporarily in connection with and for the duration of operations being or to be carried out on, in, under or over that land or on land adjoining that land”. Subsection A.2 states that development is permitted subject to the conditions that, when the operations have been carried out – (a) any building, structure, works, plant or machinery permitted shall be removed, and (b) any adjoining land on which development permitted has been carried out shall be reinstated to its former condition as soon as reasonably practicable.

The inspector found it clear that whilst the temporary use of the notice land for the placement of the storage container and for works comprising the stockpiling of excavated materials and storage of building materials in connection with the construction of the dwelling might have been permitted under the GPDO for the duration of the construction period, such permission would no longer apply after the duration of the development operations concerned. The argument that continued use of the notice land for similar purposes in connection with the construction of another dwelling was permitted development did not succeed, he ruled, because the notice land did not adjoin the land on which the subsequent building operations were being carried out.

The appellant also argued that the change of use was not material and so was not development. The inspector did not agree. The land was evidently formerly agricultural, he reasoned, and that was the lawful use which it retained following expiry of the permitted temporary use allied to the construction of the dwelling.

The following DCP section is relevant: 4.3424

Every cloud….

….has a silver lining. We are aware that, following the retirement of a number of senior inspectors, PINS’ statistics have not been looking that great recently, particularly with regard to inquiries and hearings. However, whilst it might now take an age to get an appeal decided the upside is that the new, young and hip Inspectorate appears to have a somewhat more modern outlook, as evidenced by a recent appeal decision in Bedford (DCS Number 400-016-143).

In this case an inspector sanctioned the retention of two Blues Brothers statues on a bar in the town’s conservation area, determining that there should always be a place for the unexpected provided it does not cause harm to its surroundings. He acknowledged that Paragraph 67 of the NPPF makes it clear that poorly placed advertisements can have a negative impact on the appearance of the built and natural environment. He held, however, that the statues were not disproportionately large and would not unacceptably clutter the building. They had been positioned symmetrically in a way that corresponded with the ground floor windows and, along with their neutral colouring, this helped to reduce their visual presence, he judged.

The inspector accepted that the statues were unusual, perhaps quirky features. He also accepted that the Blues Brothers, as far as he was aware, have no historical association with Bedford. Nonetheless, he found a tenuous connection given the premises appeared to be a popular music and entertainment venue. He considered that the statues did not meaningfully obstruct views of the host building or fetter one’s appreciation of the wider conservation area or the setting of nearby listed buildings. He concluded that they should be allowed to stay.

The following DCP section is relevant: 30.0332

The Big Smoke

Readers will be aware of the Government’s intention to place a ban on new diesel and petrol cars from 2040. Against that background an inspector’s decision to reject a proposal for a six storey block to accommodate 21 flats on a site within an air quality management area in north London (DCS Number 200-006-656) is of interest.

The site experienced high levels of exposure to nitrogen dioxide due largely to its location in the middle of a busy traffic island, the inspector noted. It was also exposed to exceedances of the annual mean Air Quality Objective for nitrogen dioxide to a height of approximately 7.5 metres, broadly translating to the equivalent of the ground, first and second floor levels of the proposed building.

The proposal sought to respond to this in two ways, the inspector recorded. Firstly, the building would incorporate an air management and handling system that would draw cleaner air from roof level and circulate it around the building as part of its heating and cooling air handling function. Secondly, whilst the flats would have access to opening windows and to outside space on balconies, the latter would be in the form of winter gardens; essentially enclosed balconies beyond the internal living areas, with sliding windows opening to the outside.

The inspector shared the council’s concern that a two-pronged approach of this nature might be compromised and would fail to strike an appropriate balance between access to sources of clean fresh air and ensuring a healthy supply of clean air within the building. Just as a fully sealed building without the ability to open doors or windows to draw in fresh, or at least outside, air would not provide a particularly pleasant living environment, he opined, so too would a scheme where the opening of windows came with an advisory to the occupier of the potential harm of the elevated nitrogen dioxide levels outside the building.  

It had not been demonstrated, the inspector concluded, that the proposal would provide or maintain an appropriate balance between internal air quality and satisfactory living conditions.

In twenty-odd years’ time this will all be different. Hopefully.

The following DCP section is relevant: 7.1355

Taking the Michael

An appellant has convinced an inspector that a side extension and a rear extension to his house in north London are permitted development because there would be a 5mm gap between them (DCS Number 400-016-088).

The inspector accepted that if the two components were joined the proposal would fail to comply with subparagraph (j) (iii) in paragraph A.1 of Class A, Part 1, Schedule 2 to the GPDO as it would be more than half the width of the house.

The council contended that it would not be possible to construct the proposal without bridging the gap. The inspector acknowledged that if the development was constructed with the gap bridged it would not be permitted development. He reasoned, however, that the proposal indicated that there would be a gap, and the practicalities of constructing the proposal were not a matter for him to consider.

Five millimetres?! This appellant is having a laugh.

The following DCP section is relevant: 4.3421

The Hokey Cokey

In, out, in, out…..

In a case involving a garage extension at a house in Surrey (DCS Number 400-016-084), an inspector has pointed out that with regard to eaves overhangs there is a difference between Class A of the GPDO, which deals with extensions to dwellinghouses and Class E, which deals with buildings incidental to the enjoyment of a dwellinghouse.

The appellant argued that the council had ignored roof overhangs and gutters for the purposes of measuring the two metre distance to the boundary when it had granted a certificate of lawfulness for a rear extension, so it was inconsistent to now include them when considering the garage extension.

The inspector explained that there is no specific advice in the Technical Guidance for Class E about how to measure the distance between the boundary and a building and no mention of ignoring guttering or an overhanging roof. In fact, he found, the guidance is quite clear “If any part of the building, container or enclosure is within two metres of the boundary of the curtilage of the house, then the height limit for the whole development is restricted to 2.5 metres if it is to be permitted development”. In the appeal before him the overhanging element of the roof and guttering were part of the building proposed and those parts would be closer than two metres to the boundary. The roof was too tall, and therefore the proposed extension to the garage was not permitted development.

Any ideas, dear readers, as to why overhangs should be in or out of the calculations according to which Class of the GPDO the development falls within?

The following DCP section is relevant: 4.3421

Sic erat scriptum

Readers who shop in Marks and Spencer might recall that the store was in trouble with the grammar police some years back for displaying signs at some of its tills which said ‘Six items or less’. The offending signs were replaced swiftly with signs indicating that the tills were restricted to customers purchasing the more grammatically correct ‘Six items or fewer’.

An inspector dealing with an appeal in Hertfordshire (DCS Number 400-016-037) has drawn attention to the fact that the same grammatical howler occurs in a written ministerial statement: ‘The Written Ministerial Statement (WMS) of 28 November 2014 states that tariff-style contributions …. should not be sought from developments of 10 dwellings or less [sic].‘

Quite right, too. The Blog hopes to see the publication of a correction very soon.

Grammar police – they’re there for you.

More of the same

The nature of intensification has been examined by an inspector who issued a certificate of lawfulness for an additional six units on a park home site in Hertfordshire (DCS Number 400-015-923).

The inspector explained that intensification does not amount to a material change unless and until the fundamental character of the use changes, for example where the land use planning consequences are materially different. He further explained that it can be necessary to consider both what would be happening on the land and the impact off the land when deciding if the character of the use has changed.

The inspector recorded that in R (John Childs) v First Secretary of State and Test Valley Borough Council [2005], it was held that a change in the number of caravans, however great, was capable of amounting to a material change of use. The court upheld the inspector’s finding that a change from four caravans to a proposed use for eight caravans would be material based upon a change in the character of the use and the impact on the immediate surroundings including visual amenity and traffic.

The appeal inspector reasoned, however, that all cases must be assessed on their own merits, noting that in the John Childs case the inspector was dealing with an open field in an undulating landscape and with a proposal to double the number of caravans. In the case before him, on the other hand, there would be only a very modest percentage increase in numbers, with nothing to suggest that there would be a material impact on the highway network. In addition, he was clear in his mind that the proposal would not visually change the definable character of the site or the planning unit as a whole, when viewing from the main entrance to the site. He concluded that the proposed siting of the caravans would not amount to the making of a material change in the use of the land that would require planning permission.

The following DCP section is relevant: 4.327