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Fine words

As planners we strive for clarity and precision when writing committee reports and site appraisals, so it’s useful to keep a mental folder of relevant vocabulary. You might like to file the following from a recent appeal decision (DCS Number 400-017-750).

“It …. is enclosed …. by trapezoidal section steel cladding.” and “The roof is sinusoidal profile asbestos sheeting.” Is that class, or what? It’s certainly a step up from ‘wriggly tin’ and ‘corrugated asbestos’.

Happy to share.

The wind of change

A reporter has allowed a two-year extension of a temporary permission for three 198m high wind turbines on the west coast of Scotland (DCS Number 400-017-660), notwithstanding residents’ concerns about the effect on their health.

The adverse health effects referred to by residents included headaches, dizziness and disorientation, nausea, lack of concentration and sleeplessness, and were attributed to infrasound and amplitude modulation. The reporter noted that infrasound is sound below the level of human hearing, and amplitude modulation is the variation of noise in a regular manner when turbine blades pass the tower. Residents contended that extensive evidence is available from around the world that chronic symptoms of long term exposure to the operation of wind turbines include the symptoms they reported.

The reporter recorded, however, that most of the evidence he had received from professional sources lent limited support, at most, for that view. Health Protection Scotland, whose views he accorded very considerable weight, considered four independent systematic literature reviews, including literature on infrasound and amplitude modulation. It noted that all the reviews concluded that there is sufficient evidence to confirm a clear association between wind turbine noise and annoyance, and that such annoyance is related to, but not necessarily causally linked to, levels of anxiety, sleep disturbance and stress. Apart from this, however, HPS found that none of the reviews found sufficient evidence to confirm a causal relationship between wind turbine noise and the type of health complaints cited by local residents.

An assessment by NHS Ayrshire & Arran also deserved considerable weight, the reported decided. He noted that it reviewed “the highest quality international scientific research that is available”, and said that there is no peer-reviewed scientific data to support a claim that wind turbines are causing disease or adverse health effects in humans; that evidence for a set of health effects from exposure to wind turbines that could be characterised as a “wind turbine syndrome” is of questionable quality and does not prove causation; and that assuming that reported symptoms are solely related to a source such as wind turbines without evaluating for other known causes of these symptoms is not consistent with best medical practice.

Turning to locally-based evidence, the reported recorded that NHS Ayrshire & Arran had analysed local general practice data from 2009 to 2016 to establish whether the reporting of dizziness increased in the surrounding population once the turbines had became operational. It found that the data did not show any increase in the number of people reporting symptoms of dizziness to their doctor following the installation of the first wind turbine, and the numbers were relatively consistent year-on-year.

The reporter concluded that the balance of evidence indicated that the appeal should not be refused on the basis of adverse effects on the health of the local population. He reasoned that in the event that a causal link was established between turbine operation at the appeal site and such effects, it could be addressed through environmental protection and public health legislation. Consequently, even with a reasonable application of the precautionary principle, he did not consider that the evidence of adverse effects on the health of the local population was sufficient to justify or support refusal.

What strikes us here on the Blog, though, is that with increasing emphasis on mental health does this conclusion focus attention a little too much on physical wellbeing? What do readers think?

The health effects of wind turbines are discussed at section 26.5323 of DCP Online.

Fair game?

In support of an appeal against an enforcement notice requiring the demolition of a timber structure in an open field in Bedfordshire (DCS Number 400-017-670) the appellant described the structure as intended for the breeding of game birds. On this basis he claimed that it did not require planning permission as it was intended for agricultural use.

The inspector noted, however, that in response to a planning contravention notice the appellant had previously described the structure as a tree house for his eight-year-old son and friends to play in. The inspector observed that the structure appeared as a timber shed on a platform supported by wooden poles and having a balustrade balcony.

The Blog might have enquired as to why game birds required a balustraded balcony – cocktails on the verandah? The inspector was a little more shrewd, side-stepping the lack of consistency by explaining that even if it were the intention to use the structure for agricultural purposes it could not be permitted development under Part 6 of Schedule 2 of the GPDO as no application for prior approval had been made. That saved him from saying that it was a cock and bull story.

Readers wondering whether game bird rearing ought to be considered as agriculture, anyway, might wish to note that the subject is discussed in section 9.3343 of DCP Online.

New year, new experiences

An inspector dealing with an appeal against the refusal of planning permission for the extension and conversion of a large house in the west Midlands to nine flats (DCS Number 400-017-594) has pointed out that the national internal space standards are only applicable where a relevant local plan policy is in place:

“The Council raised concern that the development would be contrary to the Nationally Described Space Standards. However, the Written Ministerial Statement of 25 March 2015 makes it clear that such standards can only be applied where there is a relevant current local plan policy. In this case, there is no relevant policy and consequently this is not a matter which carries weight against the proposal.”

Those who resolved to try out some new experiences in the new year might be interested to hear about a new searchable database of local plan policies, especially if this case reminds them that they have similar gaps in their local plans.

You can register for a free trial here.

The offside rule

A quick scan of the appeal record reveals any number of examples of arguments concerning what constitutes the side elevation of a dwelling. In dealing with an appeal against the refusal of a lawful development certificate for a two storey rear extension to a dwelling in south London (DCS Number 400-017-646), an inspector decided that a bay window in the rear elevation was part and parcel of the rear wall.

The house had a shallow trapezoid single storey bay window in the rear elevation, the inspector recorded. He noted that if the sides of the bay window were considered to be walls forming a side elevation of the original dwellinghouse the two storey rear extension would not comply with the limitations set out in Class A of Schedule 2 Part 1 of the GPDO. He acknowledged that the Government’s Technical Guidance states that a wall forming a side elevation of a house will be any wall that cannot be identified as being a front wall or a rear wall. Nevertheless, taking into account the very small projection, no more than 0.5m, the shallow angle of the side panels, the relatively flimsy construction and the single storey nature of the bay, he took the view that the bay window was merely a detail of the rear wall of the original dwellinghouse, as a matter of fact and degree. Therefore, the extension did not exceed the Class A limitations and hence would be development permitted by the GPDO.

Guidance concerning interpretation of the permitted development classes can be found at section 4.342 of DCP Online.

A matter of substance

Councils tend to be a bit cautious in dealing with amendments to planning applications, not unreasonably in our view as it is so easy to be caught out. That said, the planning system ought to be able to accommodate refinements to development proposals without all parties involved having to start again at square one. A recent appeal decision (DCS Number 200-007-183) indicates that amendments ought to be refused consideration as such only if they are substantially different from the original proposal.

In deciding whether to consider an amended proposal for approval of reserved matters relating to a housing scheme in Worcestershire, the inspector cited relevant case law set out in Inverclyde District Council v Secretary of State for Scotland [1981].

The Inverclyde judgement refers to the whole character having to be altered to render an amendment unacceptable, the inspector recorded. He considered that this is a high bar, and in the case before him there were basic aspects of the character of the proposal which had not changed. Examples of this were the access to the site and the nature of the access roads, the quantum and type of development, the locations of open space, landscape design principles and parking arrangements. He considered that these similarities resulted in the character changes being well below what could be considered to be the alteration of the whole character of the original submission. Accordingly, he was satisfied that consideration of the amended submission was lawful, and proceeded to a decision on that basis.

Section 5.135 of DCP Online concerns amendments to planning applications.

No room at the inn

As we remember the story of an infant child in need of shelter we might take a charitable view of an inspector’s decision to grant temporary permission for four unauthorised Traveller pitches in the green belt in Yorkshire, after he gave weight to the needs of the children on the site (DCS Number 200-007-139).

The inspector found harm to the green belt through inappropriate development, detriment to openness, encroachment into the countryside, and harm to the character and appearance of the area. He reasoned, however, that since there was a lack of available, alternative sites, it was likely that dismissing the appeals would force the family to resort to roadside camping. With ten young children and two more babies on the way, he attached significant weight to the appellants’ and their family’s personal circumstances.

The inspector explained that the human rights assessment must involve regard to the best interests of any children on the site. He recorded that ZH (Tanzania) v Secretary of State for the Home Department [2011]  and Elizabeth Collins v SSCLG [2013] established that the need to safeguard and promote the welfare of children is a primary consideration. Where rights under Article 8 of the European Convention on Human Rights include those of children, they must be viewed in this context, the inspector continued. The best interests of the child are not determinative, he explained, but no other consideration must be regarded as more important, or given greater weight, merely by virtue of its inherent nature.

The inspector quashed the enforcement notice, concluding that the grant of a three-year personal permission was proportionate and necessary; it would protect the green belt in the long term whilst meeting the best interests of the children and avoiding a violation of the occupiers’ rights under the Human Rights Act.

This decision must come as very welcome news to two expectant mothers who will not now be forced to take to the road after all.

The DCP Blog wishes all its readers a very merry Christmas!

Section 4.1253 of DCP Online concerns Article 8 of the ECHR – the right to respect for private and family life

The total effect

Right, we’ve had a good look at the meaning of ‘isolated’. Next up, ‘materially larger’.

Paragraph 89 of the NPPF states that planning authorities should regard the construction of new buildings as inappropriate in the green belt. Exceptions include “the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces”. However, as noted by an inspector dealing with an appeal against the refusal of planning permission for a replacement house in the green belt near Bristol, the NPPF lacks a definition for the term ‘materially larger’ (DCS Number 400-017-236).

In addition to the existing dwelling on the site there was a garage and a number of outbuildings, the inspector recorded. Pointing to its supplementary planning document on green belt dwellings, the council argued that unattached outbuildings should not be counted.

The appellant, on the other hand, drew the inspector’s attention to Tandridge DC v SSCLG & Syrett [2015] where the court held that there is no reason in principle why the objectives of green belt policy cannot be met by the application of the exception to a group of buildings as opposed to a single building. On this basis the inspector did not consider the guidance in the SPD to be consistent with the Framework and therefore afforded it only limited weight. He decided that replacing the existing buildings with the development proposed would have only a minimal spatial and visual impact on the green belt. Although the new dwelling would be larger it would not be materially so, he concluded.

This topic is covered in section 9.631 of DCP Online.

Spaced out

Further confirmation that ‘isolated’ in Paragraph 55 of the NPPF means physically isolated comes in the shape of a recent appeal relating to the refusal of outline permission for redevelopment of commercial buildings and a bungalow in the Worcestershire countryside with five dwellings (DCS Number 400-017-468). In this case the inspector usefully quotes the words of the judge in Braintree District Council v Secretary of State for Communities and Local Government, Greyread Limited & Granville Developments Limited [2017]:

The judge in the recent judgement has stated that paragraph 55 of the Framework ‘cannot be read as a policy against development in settlements without facilities and services since it expressly recognises that development in a small village may enhance and maintain services in a neighbouring village, as people travel to use them’. She also states that the immediate context is the distinction in paragraph 55 ‘between “rural communities”, “settlements” and “villages” on the one hand, and “the countryside” on the other. This suggests that “isolated homes in the countryside” are not in communities and settlements and so the distinction between the two is primarily spatial/physical’.

In this light the inspector reasoned that as the appeal site was adjacent to existing dwellings and a large employment site it was not in an isolated location. The inspector also reasoned that future occupiers of the dwellings would utilise and help to maintain the vitality of the services in the adjacent villages. Accordingly, the appeal was allowed.

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

An isolated case

Regular readers will be aware that in a couple of posts we have drawn attention to the lack of a definition for ‘isolated’ in the NPPF; Nature abhors a vacuum and  ‘Isolation’ – Now we’re getting somewhere. Readers might also be aware that the matter has been addressed recently in the High Court – Braintree District Council v Secretary of State for Communities and Local Government [2017].  Here on the Blog we have been keeping watch for an appeal case which refers to this court ruling in order to understand its impact in practice, and a useful example has come up in Worcestershire (DCS Number 400-017-452). This case involves the conversion of storage buildings adjacent to a village settlement boundary to three dwellings. Despite being identified as being within open countryside, the site was not isolated, the inspector concluded:

“Paragraph 55 of the Framework says that isolated homes in the countryside should be avoided. Although ‘isolated’ is not defined, it is reasonable to understand that it means isolated spatially from other built development, and this supported by the judgement in Braintree District Council v Secretary of State for Communities and Local Government, Greyread Limited & Granville Developments Limited [2017] EWHC 2743 (Admin). In the case before me, the site is adjacent to a residential property which is within the settlement. Indeed the retained building on the appeal site runs along the boundary with the dwelling and is seen in the same context. Therefore I consider the site is not isolated, and the development would not conflict with paragraph 55. I accept Braintree District Council in the above case did not have a five years supply of housing, whereas Wychavon District does, but that does not alter the interpretation of paragraph 55.”

There must surely be a good number of rejected proposals on edge-of-village sites which are now worth another look.

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