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Housing land shortage leads to lifting of holiday homes restriction

The scenario described in (DCS Number 400-013-674) must be common to a number of holiday mobile home parks up and down the country: “…the appellant claims that the units have never been available to rent by third parties as short-term holiday accommodation…” and “…the site lacks the kind of shared facilities one would normally associate with a holiday park.” This appeal sought the removal of the condition which limited the mobile homes to occupation for holiday purposes.

The inspector found the council’s argument that the proposal would displace accommodation intended for tourism tenuous and unsupported by substantive evidence. He accepted that the site was poorly located in terms of access to local services and employment areas and that residents would be largely reliant on the use of a private motor car. He reasoned, however, that this was already the case and noted that the council had not provided any evidence to demonstrate that either the frequency or length of trips to and from the site would increase as a result of the removal of the conditions restricting the mobile homes to holiday occupation. On the other hand he found that the scheme would make a modest but not insignificant contribution towards the council’s housing stock which, given its acknowledged housing land supply deficit, was a material consideration to which he attributed significant weight. He concluded that the disputed condition was not necessary or reasonable and allowed the appeal.

We are not sure we see things in quite the same way as the inspector here. The decision must surely at least negate the potential for tourism income which the site would generate if it were operating as a holiday park in line with the condition. What do readers think? In the meanwhile, the decision might indicate a rich seam of new business for planning consultants working in holiday areas.

The following DCP section is relevant: 9.733

No place like home, no place like home, no place like home….

We have spotted The Wizard of Oz in the telly listings so we feel bound to make a reference to this Christmas TV classic……

It’s worth remembering that whilst Dorothy was pleased to find herself back home in Kansas others might not view former homes in quite the same way. A couple of enforcement notices have been faulted at appeal recently (DCS Numbers 400-013-495 and 400-013-616), the inspectors explaining that an enforcement notice can only require the cessation of the unauthorised use; it cannot require reversion to use as a dwelling.

In (DCS Number 400-013-495) the requirements of the notice were to “cease the use of the property as a HMO and revert the property back to its lawful use as a C3 single family dwelling”, and the notice in (DCS Number 400-013-616) alleged the “the unauthorised subdivision of the property into two residential units” and required the appellant to “Return the use of the property to a single family dwelling house”. In the former case, the inspector commented that “the courts have held that it is sufficient in cases such as these that the requirement is to simply cease the unauthorised use and not to add that the house should revert to a single dwellinghouse. This may be the outcome and one which the Council desire but it is sufficient to stop using the property as a HMO to remedy the breach.” In the latter case, the inspector explained that “A notice cannot require a use to be revived or carried on. It is sufficient to require the breach of planning control to cease.”

The following DCP section is relevant: 4.326

Planning obligation reference to old GDO no longer binding

An inspector has issued a certificate of lawfulness for an extension to a dwelling in Essex (DCS Number 400-013-660) after finding that a reference to the 1988 General Development Order in a planning obligation was no longer binding.

The s52 Agreement covenanted “…to surrender all residential permitted development rights within Classes A B C D and E of Part 1 of the Schedule 2 of the Town and Country Planning General Development Order 1988.” The inspector ruled that since the s52 Agreement referred exclusively to the 1988 GDO the covenantor could not be deemed to have surrendered permitted development rights granted by subsequent Orders. He noted that, under the Interpretation Act 1978, a reference in any Act or Statutory Instrument to the 1988 GDO would be construed as a reference to the 2008 GPDO and the 2015 GPDO. However, the council had not identified any provision which applied that principle to references in a deed, such as a s52 Agreement. In the absence of any clear submissions to the contrary, he did not accept that the Interpretation Act 1978 cured the problem with the s52 Agreement.

We are not entirely sure that we are with the inspector on this one as s17 of the Interpretation Act does make a catch-all reference to ‘or other thing done’, and a s52 Agreement must surely fall within this category. However, when dealing with similar cases the way you wish to interpret the Interpretation Act might just vary depending on whose side you’re on.

The following DCP section is relevant: 4.4261

The perils of pragmatism

A condition attached to the planning permission for the redevelopment of a site in Buckinghamshire with six flats which sought to nullify an earlier permission for one dwelling has been deleted at appeal (DCS Number 400-013-570).

The earlier permission granted consent for a detached dwelling to be built on land which was subsequently identified as providing two of the six car parking spaces for the flats. The council was concerned that if both permissions were implemented four parking spaces would be insufficient to serve the six flats. Accordingly, it attached a condition to the flats permission stating that the permission would lapse if the dwelling permission was lawfully implemented in whole or in part.

The inspector explained, however, that in circumstances where multiple permissions relate to the same land, a planning condition cannot be used to revoke any other permission on the land, or the permission it is attached to by the implementation of another planning permission. The revocation of a planning permission, he continued, can only be carried out by the local planning authority or the secretary of state by a process under sections 97 and 100 of the Act. He concluded that the condition was unenforceable and therefore unnecessary and so did not meet the tests in the National Planning Policy Framework. He decided, therefore, that he was unable to come to any conclusion other than that the appeal seeking the removal of the disputed condition should succeed.

At a time when council planners are exhorted to cut down on red tape this story serves as small encouragement.

The following DCP section is relevant: 6.21

Making a start

Judging the amount of works necessary to constitute the implementation of a planning permission can be difficult, although an inspector dealing with an appeal against the refusal of a certificate of lawfulness for a replacement dwelling in Kent (DCS Number 400-013-504) was ‘mindful that very little is needed to implement a permission for operational development’. This tallies with the inspector’s finding in Cemetery firm digs itself out of a hole.

The inspector determining (DCS Number 400-013-504) recorded that the commencement works cited by the appellant consisted of the laying of a short length of underground drainage pipe. Although there was nothing to be seen on site, photographic evidence submitted to the council before the deadline for the commencement of the permission was sufficient to satisfy the inspector that the works claimed had indeed taken place by the relevant time. He noted that the pipe had occupied a pit of 1m by 1m and on that basis calculated that its length was a maximum of 1.41m.

The inspector recorded that Section 56(2) of the Act states that development of land shall be taken to have been begun on the earliest date on which any material operation comprised in the development begins to be carried out. Section 56(3) specifies that the term ‘material operation’ encompasses, amongst other things, the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any trench which is to contain such foundations or part thereof. In the case before him, however, he found that the works undertaken were so minor and positioned in such a way as to raise the question of whether they were in fact material. He acknowledged, having regard to case law arising from the judgment in Spackman v SSE [1977], that underground drainage works that are no longer visible without excavation might sometimes constitute a commencement of development, even in circumstances where the foundations or trenches referenced in section 56(4) have yet to be created themselves. Nevertheless, he found that the run of drainage was so short and required so little excavation that, if considered in isolation, it would be more usual to regard such works as de minimis. Moreover, it seemed that the pipework must end at least 1.5m short of where the foundations ought to be, thus falling outside the parameters of section 56(4)(c). The appellant had not fulfilled the burden of proof by demonstrating on the balance of probabilities that the limited operation could actually qualify as a commencement of the development in question, the inspector concluded.

The following DCP section is relevant: 6.341

How quaint

We haven’t seen this excuse for ages:

“At the hearing, the Council explained that, due to computer generated errors, its decision notices …… include references to planning permission whereas they should have referred to listed building consent.” (DCS Number 200-005-795)

Bet the dog ate their homework as well.

The following DCP section is relevant: 6.3   

Q When is a rooflight not a rooflight?

A When it’s not in a roof

See what you think of this one – we’re not sure what to make of it here. An inspector has denied a lawful development certificate for a rooflight to a basement underneath the garden of a house in central London on the basis that it would not be in the roof and would therefore not constitute permitted development (DCS Number 400-013-551).

Both parties agreed that there is no definition of “roof” either within the GPDO or its Technical Guidance. The appellant obtained counsel’s opinion to support his stance that the works would be undertaken to the roof. Counsel noted that the Oxford English Dictionary definition of the word “roof” is:- “The external upper covering of a house or other building; the framing structure on top of a building supporting this”. He suggested that the soil above the basement could properly be described as the “external upper covering” of the basement and questioned what the roof would comprise if not the soil above.

The inspector, however, reasoned that a basement will very often not have any external roof. She observed that around one metre of soil separated the basement from the air space above. She acknowledged that a building could have an earth roof, and many forms of conventional roof coverings will typically exceed one metre in height, but noted that the soil did not form any structure above the basement. Rather, it was merely a deep layer of earth which so happened to now have a basement beneath. It followed, she concluded, that Class C of Part 1 of Schedule 2 to the GPDO did not apply; the council’s refusal to grant a certificate of lawful development in respect of the “installation of a fixed rooflight to basement” was well-founded and the appeal should fail.

The following DCP section is relevant: 12.41

Pooling restriction not applicable to prior approval scheme

The conversion of two barns in Surrey to three houses under the prior approval procedure succeeded at appeal after an inspector ruled that the Section 106 pooling restriction did not apply (DCS Number 400-013-505).

The site was within 5km of the Thames Basin Heaths Special Protection Area (SPA), designated because of its importance in providing a habitat for three species of bird subject to European protection. The inspector recorded that the council had adopted an Avoidance Strategy which provided a mechanism for developers to mitigate the effect of new residential development within 5km of the SPA by providing or contributing to Suitable Alternative Natural Greenspace (SANG). As the appellant had submitted a unilateral undertaking which would make the contribution sought by the Avoidance Strategy the inspector was satisfied that adverse effects on the SPA would be adequately mitigated. He noted that Regulation 123 of the Community Infrastructure Levy (CIL) Regulations 2010 places restrictions on the use of obligations when granting planning permission. He reasoned, however, that in the case before him permission was granted under the GPDO, and since it was not an application for planning permission it was not covered by the pooling restriction contained in the CIL Regulations. He concluded that the obligation was necessary and otherwise satisfied the tests set out in the National Planning Policy Framework and the CIL Regulations.

What the DCP Blog would like to know is what difference does the nature of the legislation under which residential development is granted make to the nightjar, Dartford warbler and woodlark. Does this highlight yet another discrepancy between the planning permission and prior approval legislation or can readers make sense of this?

The following DCP section is relevant: 4.169

Intentional unauthorised development

Whilst agreeing with the national park authority that a barn on Exmoor was intentional unauthorised development, an inspector judged that this fact was not, on its own, sufficient to dismiss the appeal against enforcement (DCS Number 400-013-494).

Planning permission had been granted for the erection of an agricultural building but the building which had been constructed was longer, wider and higher than that permitted. The inspector found that although materially larger than the approved building and of a utilitarian design, its appearance was such that it would be read as a typical agricultural building on an existing farm complex in a rural setting. She accepted that views were an essential part of the enjoyment of the national park but did not find the additional landscape impact to be so significant that it harmed the natural beauty and scenic quality of the park. Addressing concerns about drainage, the appellant having built over the location allocated for a soakaway, the inspector found that the site could be satisfactorily drained subject to the imposition of a condition.

Turning to the matter of intentional unauthorised development, the inspector recorded that on 31 August 2015, the Department for Communities and Local Government published a planning policy statement on green belt protection and intentional unauthorised development. She explained that the policy came into force on that date and made intentional unauthorised development a material consideration to be weighed in the determination of planning applications and appeals. Although the appeal before her did not relate to green belt, she noted that the policy applies to all new planning applications and appeals received from 31 August 2015. The government is particularly concerned, she noted, about harm that is caused where the development of land has been undertaken in advance of planning permission being granted.

The national park authority contended that the appellant had intentionally flouted the development control process and carried out the development despite being advised not to do so. Correspondence between the NPA and the appellant confirmed to the inspector that this was the case. She also accepted that the NPA had had to take enforcement action which had been time consuming and expensive. Accordingly, she concluded that the development was intentional unauthorised development, and that this was a material consideration weighing against the grant of planning permission. Nevertheless, she did not consider that the matter of intentional unauthorised development carried such significant weight that the appeal ought to be dismissed and the enforcement notice upheld on this basis alone given the acceptability of the scheme in all other respects.

This tells us, it seems, that having a somewhat casual approach to the reading of approved drawings will not in itself carry significant weight in the planning balance, irritating though that might be. It might just tip the scales, though, where there are other matters weighing against the development. As readers will be aware, this marks a change from the situation previously: whilst Section 73A of the Act still allows applications for planning permission for development that has already taken place and the retrospective validation of a contravention of planning control, there is now a sanction in place. As the 31 August 2015 letter from the Chief Planner recorded, in cases where the development of land has been undertaken in advance of obtaining planning permission there is no opportunity to appropriately limit or mitigate the harm that has already taken place, and such cases can involve local planning authorities having to take expensive and time consuming enforcement action.

The following DCP section is relevant: 4.5

See you in court

A council in Hertfordshire has threatened a legal challenge to Planning Policy Guidance in respect of barn conversions under the GPDO (DCS Number 400-013-437).

The basis of the council’s refusal of prior approval for the residential conversion of the barn was that it would result in a dwelling in an isolated location. An appeal inspector pointed out, however, that Planning Practice Guidance (PPG) confirms, in relation to the Class Q permitted development rights, that

‘…When considering whether it is appropriate for the change of use to take place in a particular location, a local planning authority should start from the premise that the permitted development right grants planning permission, subject to the prior approval requirements. That an agricultural building is in a location where the local planning authority would not normally grant planning permission for a new dwelling is not a sufficient reason for refusing prior approval…’

The council referred to paragraph W.10 of Part 3 of the GPDO, which required it, when determining an application under Class Q, to have regard to the National Planning Policy Framework as if the application were a planning application. The council argued that the government did not ‘clarify’ the terms of the GPDO when it was amended in April 2015, the inspector recorded. He took the view, however, that the PPG provides adequately clear advice concerning the correct approach to apply. He acknowledged that the interpretation of the GPDO is a matter for the courts and that the council had stated that it intended to challenge the approach set out in the PPG, but he reasoned that there was no case law in place which indicated that the approach in the PPG should not be followed.

Costs were awarded to the appellant.

Watch this space.

The following DCP section is relevant: 4.3423