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Closed for the season

Readers working in holiday areas might be interested in an appeal by a holiday caravan site on the Kent coast, in which they sought the reduction of their closed period from two months to two weeks (DCS Number 400-015-300). Planning authorities will often resist such proposals on the grounds that the use becomes tantamount to residential occupation. Whilst the inspector in this case rejected that argument he nevertheless dismissed the appeal on the novel grounds that permanent local residents ought to be allowed some peace and quiet during the winter months.

He reasoned that “….limiting the occupancy of holiday parks serves to highlight the changing character of the rural area throughout the year. It ensures that permanent residents locally are able to experience the tranquillity of the area when it is free from visitors. Extending the period of occupation to 11½ months would alter the character of the local area and would not provide the respite which occurs with the 10 month occupancy period. It would therefore lead to a noticeable change in the rural character of the area in the quiet early months of the year.”

The inspector decided that the condition should be retained in its current form.

The following DCP chapter is relevant: 24.241

The definition of curtilage

An inspector dealing with an appeal against the refusal of a lawful development certificate for a detached swimming pool and store at a house in west Yorkshire (DCS Number 400-015-315) has helpfully set out the case law on the definition of curtilage, which readers might find it useful to cut out and keep.

There is no authoritative or precise definition of the term ‘curtilage’, the inspector recorded. However, to fall within the curtilage of a building, land should serve the purpose of the building in some reasonably necessary or useful manner, he explained. This was established in Sinclair-Lockhart’s Trustees v Central Land Board [1950]. In Methuen-Campbell v Walters [1979] it was found that for land to fall within the curtilage of a building or other land there must be an intimate association. In the Court of Appeal case, Dyer v Dorset CC [1988], it was held that curtilage is a small area forming part and parcel with the house or building which it contained or to which it was attached. In that context, the judge commented that the kind of ground most usually attached to a dwelling house is a garden.

These authorities, including Methuen-Campbell, were reviewed in McAlpine v SSE [1995] which indicated, amongst other things, that curtilage is a small area about a building, that the curtilage land must be intimately associated with the building, and that the size of the area of ground is a matter of fact and degree. McAlpine also reiterated the finding in Sinclair-Lockhart that curtilage land should serve the purpose of the building within it in some reasonably necessary or useful manner.

The appellant in (DCS Number 400-015-315) also referred to the High Court case of Sumption v London Borough of Greenwich and Rokos [2007], the inspector noted. He explained, however, that Sumption does not undo the precedent set by the Court of Appeal, and so does not establish, as a matter of law, that the curtilage of a dwellinghouse can be expanded simply by annexing adjoining land, which itself is being used for garden purposes.

Applying these rulings to the case before him, the inspector reasoned that smallness (Dyer) of the land in question was a relative factor; a matter of fact and degree. In his view the appeal site was not disproportionately large in width, length or area given the large size of the detached dwelling house and its original plot. As a matter of fact and degree, he considered it to be small relative to the size of the dwelling. Moreover, it was not so large that the furthest extent of it could be said to be unable to have an intimate association (Methuen-Campbell) with the house. Its use as a cultivated garden with play equipment, still in situ at the time of his visit, indicated to him that it did have an intimate association with the use of the house, and as a domestic garden it served the purpose of the dwelling house in a reasonably useful manner (Sinclair-Lockhart). This appeared to him to have been the case for a number of years prior to the date of the application.

The inspector concluded that the appeal site formed part of the curtilage of the dwelling. Consequently, an LDC was granted for the proposed outbuildings as they would be permitted development within Schedule 2, Part 1, Class E of the GPDO.

The following DCP chapter is relevant: 4.3444 and 12.912

Use or abuse

Paragraph 112 of the NPPF states:

“Local planning authorities should take into account the economic and other benefits of the best and most versatile agricultural land. Where significant development of agricultural land is demonstrated to be necessary, local planning authorities should seek to use areas of poorer quality land in preference to that of a higher quality.”

What does ‘significant’ mean in this context, though? In (DCS Number 400-014-946) an inspector appears to have interpreted it as meaning ‘a lot’. In this case nine dwellings were allowed on agricultural land adjacent to the built-up area of a village in Kent. The council was unable to show a five-year supply of housing land, and the inspector found that the visual harm could be partially mitigated by landscaping. He recorded, however, that the site comprised around 0.49 hectares of Grade 1 (excellent) agricultural land. Nevertheless, he reasoned that whilst the NPPF expresses a preference for development on non-BMV land, it does not preclude development on BMV land.

Bizarrely, he also came up with this: ‘Perhaps the most compelling argument here is that the land is not currently in agricultural use and therefore there would be no loss of BMV.’

Yes there would. If fertile land is built on it is made sterile forever.

He continued, ‘The view expressed by some that the site could potentially be used for arable farming, is not a good one in principle as it could be applied to a wide range of sites to the further detriment of housing supply.’

But, national policy favours the use of poorer quality land over the best land and, as far as we know, no evidence had been provided to show that no poorer quality land was available.

He concluded, ‘Even if the land was in agricultural use, the loss of 0.49 hectares would be relatively small and could not reasonably be described as significant in the terms set out in the Framework.’

Given that the meaning of ‘significant’ is a matter of interpretation we can’t argue with this conclusion but we do take issue with the reasoning.

The following DCP chapter is relevant: 4.145

All at once

This doesn’t come up very often so we thought we’d share.

A condition requiring rooftop extensions at three adjacent properties in north London to be constructed concurrently has been upheld at appeal (DCS Number 400-015-207). The locally listed buildings formed part of a Georgian terrace and the council was concerned to protect the overall unity and character of the terrace. The owners of two of the properties were keen to proceed as soon as possible, whilst the third owner could not commit to the same time frame as the others. The inspector understood that, as the properties were in individual ownership, the condition was frustrating the ambition of others, particularly that of the appellant who was keen to progress a wider scheme of restoration for his property.

The appellant referred to advice in the Planning Practice Guidance, which states that conditions requiring development to be carried out in its entirety will fail the test of necessity by requiring more than is needed to deal with the problem they are designed to solve. The inspector reasoned, however, that specific policies and guidance had been put in place to enable the management and control of the character and appearance of heritage assets, particularly in terms of the protection of roof lines in the area. The condition did not require more than the problem it was designed to solve but rather was necessary to ensure a coherent roofscape. The inspector was satisfied that the condition met the tests set out in the NPPG and concluded that it should be retained in its present form.

The following DCP chapter is relevant: 4.423

Monotheism

We all know that we should avoid the deification of money but every now and then we might need a reminder. So was it due to divine intervention that a halo illuminated sign on a commercial building opposite Bristol cathedral was recently turned down at appeal (DCS Number 400-014-940)? God only knows, but the inspector considered that the overall size, height and illumination of the sign was such that it would detract from the imposing presence of the medieval cathedral. The appellant referred to commercial reasons for seeking the signage, which would comprise bronze coloured anodised aluminium letters with halo lighting designed to create a glow effect. The inspector countered that this was not a matter which she was able to take into account (heaven forfend!) as it did not relate to amenity or public safety.

The following DCP chapter is relevant: 30.033

Lacking support

An allowed appeal for the residential conversion of a Derbyshire pub (DCS Number 200-006-392) reminds us that the supporting text attached to a planning policy ought not to be relied on too heavily.

The inspector acknowledged that the supporting text to the relevant policy stated that as part of their submissions for planning permission applicants would be required to demonstrate the extent to which they had marketed the business as a going concern. She recorded, however, that the decision in Cherkley Campaign Ltd, R (on the application of) v Mole Valley District Council & Anor [2014] confirmed that something in the supporting text, if not referred to in the policy itself, cannot have the same force as a policy. She found that she did not have evidence of the marketing campaign, beyond the particulars of the property, to be satisfied that the appellant had demonstrated satisfactorily the marketing of the property as a going concern. But in any event, given the limited weight attached to this requirement, she concluded that the conflict with the policy was limited in this regard.

The following DCP chapter is relevant: 4.2

Working conditions

When considering the different functions of the description of development on a planning permission and of conditions it is worth remembering the explanation given by the judge in Cotswold Grange Country Park v Secretary of State for Communities and Local Government [2014]. He said “….the grant identifies what can be done – what is permitted – so far as use of land is concerned; whereas conditions identify what cannot be done – what is forbidden.

Keep it – it’s yours.

The judge continued “…Simply because something is expressly permitted in the grant does not mean that everything else is prohibited. Unless what is proposed is a material change of use …..generally, the only things which are effectively prohibited by a grant of planning permission are those things that are the subject of a condition,……”

Well, that’s straightforward.

Which is why we are now questioning the inspector’s conclusion in (DCS Number 400-015-174). In this case the inspector issued a lawful development certificate for the siting of static caravans for year-round residential use on a caravan park in Sussex. The point in dispute between the parties was whether a 1998 permission limited the use of the land to touring caravans. The description of development in this permission referred to ‘‘extension of caravan park to cater for an additional 10 touring caravans’ but there was no condition limiting use of the land for the siting of any particular type of caravan nor was there a condition limiting year round use of the site.

The case of I’m Your Man Ltd v SSETR [1999] established the principle that if a limitation is to be imposed on a permission granted pursuant to an application, it has to be done by condition, the inspector recorded. The council argued, on the other hand, that the I’m Your Man principle was not relevant because there would be a material change of use of the land from the siting of touring caravans to the siting of static caravans.

Jump back to the judge’s words here; “Unless what is proposed is a material change of use….”

The inspector reasoned that there is no separate statutory definition for a touring or static caravan but one single definition of a caravan which embraces both types of vehicle, and therefore both fell within the description of development in the 1998 permission, namely caravan park. On this basis she was not persuaded that a change in the use of a caravan park from the siting of touring caravans to the siting of static caravans would constitute a material change of use.

Readers, what do you think? Isn’t the inspector muddling the thing (the caravan) with the use (touring/residential), when they ought to be considered separately? We’re lining up with the council on this one.

The following DCP chapter is relevant: 4.4114

Scary stuff

As we know, powers under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 may be exercised only in the interests of amenity and public safety.

In the old days, when we were safe and life was simple, public safety considerations nearly always related to whether an advertisement would prove to be a distraction to motorists. Following recent violent incidents in London and elsewhere it seems that we live in a different world now.

In (DCS Number 400-015-126) an inspector granted consent for a double-sided digital screen forming the end panel of a bus shelter in north London. With regard to amenity, he found that the character of the street scene was vibrant and busy and he considered that the advertisement would not appear incongruous in its busy urban setting. What marks out this case as notable is that in the event of an emergency, Transport for London will be able to override the advertisement function and display an emergency message, alerting the public of immediate danger.

How times have changed.

The following DCP chapter is relevant: 30.033

Fashion advice

An LBD is a Little Black Dress. Always has been, always will be. An LBD is not a Limit of Built Development (DCS Number 400-015-158).

Check these things out, people!

Pester power

Those of us who are parents know that it can be very hard not to just give in to pester power, and we are wondering if this might give us the background to (DCS Number 400-015-070).

In this case, an inspector upheld an enforcement notice directed at the keeping of horses in the back garden of an end terrace house in Essex.

There was no dispute between the parties that the two horses were pet animals for the enjoyment of the occupants of the dwellinghouse. The inspector pointed out, however, that it is established law that a purpose incidental to the enjoyment of a dwellinghouse should be interpreted as reasonably incidental and not on the unrestrained whim of the occupier. She observed that the surrounding area was residential and high density and that the rear garden was relatively small. The horses did not graze in the garden and were walked regularly through the garden to nearby land, she noted. The wooden building in which the horses were housed did not take up the majority of the garden but she found that it was nevertheless a significant building in its residential context and highly prominent from and in close proximity to its residential neighbours. She had no reason to doubt the neighbour who described the occasional negative impact of the close proximity of the horses on her living conditions by reason of odour.

The inspector concluded as a matter of fact and degree that the keeping of horses was not for a purpose incidental to the enjoyment of the dwellinghouse. Consequently, the stable building did not benefit from permitted development rights and required planning permission.

Remember this tale when your little angel is pleading for a pony of their own.

The following DCP chapter is relevant: 12.8