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Back to the future

Just as we were thinking that telegraph poles were all but redundant along comes an inspector allowing a high tech version.

In (DCS Number 400-013-384) a consortium of telecommunications operators proposed a 10 metre high replica telegraph pole in southeast London. The inspector was aware that there had been a previous application for a 12.5 metre high monopole on the site. He observed that that scheme would have been significantly more prominent due to its greater height and the bulbous nature of the antenna shroud. In re-designing the proposal to a single diameter replica telegraph pole of lesser height he considered that the appellant had shown a readiness to compromise, notwithstanding the fact that the 10-metre scheme would be on the margins of acceptability in terms of the network coverage it would provide.

The inspector acknowledged that the timber-effect monopole would be taller and wider than the telegraph poles it was designed to replicate. Whilst this would give it greater presence, he considered that the general appearance would be similar. The monopole would of necessity rise above adjacent street lights and trees, but the difference in height would not be significant, he judged, and the structure would not be obtrusive or unduly prominent. He concluded that the monopole would be read in the context of other vertical elements of street furniture and would be assimilated into the street scene without creating a sense of clutter.

The Blog is predicting the launch of the Bakelite iphone very soon.

The following DCP section is relevant: 28.1

A genuine offer?

An appeal concerning the removal of an agricultural occupancy condition from a farm bungalow in Kent (DCS Number 200-005-719) has articulated a nagging doubt held here on the DCP Blog about a certain aspect of planning practice.

The retired farmer claimed that following the loss of rented land, changes in farming practices and the flooding of fields adjacent to a river, there was no longer any cause for the occupation of the property to be restricted to a farm worker. Moreover, he wished, in due course, to have the option of passing on his home to his non-farming family who would not comply with the occupancy condition.

The appellant accepted that he had not marketed the bungalow. He did not wish to move and felt that to undertake such an exercise would be to do so under false pretences. The inspector, however, determined that in the absence of such a ‘market-testing’ process it was impossible for her to assess whether or not there was a demand for an agricultural worker’s property of the size and likely value in the area. Consequently, she decided that it would be premature to remove the occupancy restriction.

Another example of market testing being required in order to prove lack of demand is where the removal of a holiday letting condition is proposed. Where holiday occupancy of a property has been low its owners might decide that it is no longer viable to keep cleaning, maintenance and letting services in place, and would therefore not be in a position to accept bookings. Nevertheless, they are required to advertise the property for holiday use. Readers will no doubt be able to think of other examples.

Should the planning system be insisting on the marketing of property under what might be, as the old farmer articulated, false pretences? What do readers think?

The following DCP section is relevant: 9.334

Permitted development rights apply to HMOs

There is sometimes a degree of uncertainty concerning the application of permitted development rights to houses in multiple occupation. Here is an inspector setting the record straight (DCS Number 400-013-332):

“The appeal property is a mid terrace building currently in use as a small House in Multiple Occupation (HMO) for up to 6 people (Class C4). The proposal seeks approval for a single storey rear extension with a flat roof to 6 metres (m) from the original rear wall of the house. The GPDO allows for such extensions to terraced dwellinghouses. However, it is the Council’s assertion that given the current use of the appeal property as a small HMO, it does not benefit from such permitted development rights under the provisions of the GPDO.

Nevertheless, it is my understanding that HMOs, including those which fall within Class C4, can benefit from the permitted development rights granted to dwellinghouses by the GPDO. The test for whether a property is eligible to use the permitted development right is whether it can be considered a dwellinghouse within the context of the GPDO. On this matter, case law has established that the distinctive characteristic of a dwellinghouse is its ability to afford to those who use it the facilities required for a day-to-day private domestic existence.”

Having found that the property afforded the people who used it the facilities required for a day-to-day private domestic existence the inspector concluded that it would benefit from the permitted development rights granted to dwellinghouses by the GPDO.

The following DCP section is relevant: 11.2

Expediency

Readers dealing with enforcement matters will know that it is a matter of judgement for a local authority as to whether or not it is expedient to take enforcement action against a breach of planning legislation; the funds to pursue such action are, of course, drawn from the public purse.

Accordingly, such readers might find useful the following neat summary of the law on expediency, found in a recent appeal decision (DCS Number 400-013-325):

“The starting point in this regard is section 172(1)(b) of the 1990 Act as amended, which specifies that a notice may be issued when it appears to the local planning authority that it is expedient to do so, having regard to the provisions of the development plan and any other material considerations.……

Firstly, the Appellant’s argument in this regard is based solely on the notion that he should have been given the opportunity to make a planning application for some or all of the unauthorised works before enforcement action was pursued. However, even though this is often good practice it is not a statutory requirement and thus has no bearing on the legal standing of the enforcement notice.……

Secondly, the High Court found in R (Ardagh Glass Ltd) v Chester CC [2009] that, as a test, ‘expedient’ suggests the balancing of the advantages and disadvantages of a course of action, the basis for which should be the assessment of planning considerations. The phrase ‘where it appears to them’ in section 172(1) is a clear indication that whether to issue an enforcement notice on this basis is a matter for the local planning authority’s discretion..…..

In any event, in the case of Britannia Assets v SSCLG & Medway Council [2011] it was held that there was no jurisdiction for an Inspector to determine whether or not the local planning authority had complied with its obligation under section 172 in this regard. Any legal implications of whether it was ‘expedient’ for the authority to issue an enforcement notice are therefore matters to be dealt with by way of judicial review.”

The following DCP section is relevant: 4.5313

Replacement windows in historic buildings

Readers might wish to note the detailed consideration given by an inspector to an appeal against the refusal of listed building consent for the replacement of a bay window in a Dorset cottage.

To many owners of historic homes it might come as a surprise to find that “Before any decision is made about whether to repair or renew, it is essential that the condition of the joinery is fully understood. It usually necessary to carefully remove the frames so that a detailed examination can be made. It is then possible to prepare an accurate schedule of repair, by reference to each joint, each element of the joinery and each pane of glass.” The inspector goes on to explain in precise terms why the proposed insulated glass units (IGUs) would fail to preserve the special architectural and historic interest of the building (see (DCS Number 400-013-370)). In this regard she draws attention to useful advice on upgrading windows given by Historic England: Traditional Windows: Their Care, Repair and Upgrading, September 2014.

The inspector reports that the HE advice discusses the importance of the scientifically well-established concept of the “whole building approach” to energy conservation in historic buildings, which simply means looking at how the energy usage can be saved throughout the whole property, not just by one measure. It also sets out the evidence gained through research, which has shown how measures such as blinds, insulated curtains and shutters can be a cost effective way of achieving good levels of improvement to the thermal efficiency of older windows.

In the case before her the inspector decided that the limited public benefit in terms of the small reduction in carbon emissions when compared to other ways of improving the thermal performance of the replacement bay window would not justify the harm caused to the significance of the listed building by the visually discordant use of slim profile IGUs.

The following DCP section is relevant: 27.2321

Vertical Sky Component in practice

In Vertical Sky Component – an explanation the Blog explained how VSC is calculated. Just as an example, here it is in practice in a recent appeal decision relating to a flat block extension in east London (DCS Number 400-013-364)

“……BRE guidelines indicate that a window may be adversely affected if the VSC measured at the centre of the window is less than 27% and less than 0.8 times its former value. The resultant ratio for the second floor window of No 363A would be less than 27% and 0.66 times its former value. I consider that this loss of daylight would result in significant harm to the living conditions of occupiers of the second floor of No 363A.”

“……I conclude that the development would have a harmful effect on the living conditions of occupiers of … 363A … through … a harmful loss of daylight to the second floor window …”

The following DCP sections are relevant: 4.236 and 8.432

A nice cup of tea and a sit down

In quashing an enforcement notice aimed at the unauthorised change of use of a travel agency (Class A1 use) in central London to a mixed use comprising a retail shop and a café/restaurant an inspector recognised the leisure aspect of shopping trips (DCS Number 400-013-348).

Development plan policy indicated that existing A1 retail would be protected throughout the borough except where the council considered that the unit was not viable, and the appellant had provided no evidence to show that the continued use of the appeal premises for an A1 use was not viable. Nonetheless, the inspector found that the use offered the prospect of providing more jobs than an A1 use of the premises, and increasing average spend in the area. Therefore, it was consistent with the objectives in the National Planning Policy Framework in terms of supporting economic growth and competitive town centres that promote customer choice. He considered that, on balance, these considerations outweighed the fact that the use did not accord with the development plan. In this regard he noted a study by the University of Southampton concerning the leisure aspects of shopping trips. The study, “High Street Performance & Evolution”, was published in July 2014. In summary, it produced evidence to suggest that the leisure aspect of shopping trips, including places to eat, is a significant driver of footfall in high streets. The study also suggested that the leisure offer increases both time spent within the high street as well as the average spend.

Quite. Shopping all day is exhausting.

The following DCP chapter is relevant: 16.131 

Think positive on enforcement

An inspector has upheld an enforcement notice requiring the removal of an unauthorised shopfront in a north London conservation area (DCS Number 400-013-303), notwithstanding there being no requirement in the notice to replace it.

The requirements of the notice were to “remove the unauthorised shopfront in its entirety and remove from the land any resultant debris”. The inspector found that the large expanses of glazing and metal framework of the unauthorised shopfront appeared contemporary in design and failed to reflect the traditional appearance and architectural composition of the host building and surrounding area. In addition, the shopfront did not include a proper stallriser or any other traditional shopfront features. Overall, he considered that the unauthorised shopfront by reason of its design and inappropriate use of materials detracted from the historical and architectural integrity of the area and failed to preserve or enhance the character or appearance of the host building and the conservation area.

The inspector was alert to the fact that compliance with the notice would leave the retail unit without a shopfront. There was no requirement in the notice, for example, to install a shopfront of the same design, materials and appearance as the shopfront that was previously in place. He suggested that the appellant might well need to enter into discussions with the council about the way forward, explaining that the council has powers to extend the period for compliance with the notice under the provisions of section 173A(1)b of the 1990 Act as amended, should it consider that this would be appropriate and beneficial in the circumstances of the case.

Perhaps the point to be made here, and which perhaps this case illustrates, is that enforcement ought to be viewed as a positive activity. As the inspector said, the poor condition of the previous shopfront was an opportunity to improve the character and quality of the area and the way it functions but that the opportunity had been wasted. Here is where enforcement can retrieve the situation. Positive enforcement, in the form of a specification for a new replacement shopfront, has the potential to bring about an enhancement to the street scene. Don’t forget this part.

The following DCP chapter is relevant: 4.536

Sangfroid on SANG contributions

An inspector has allowed an appeal against the refusal of planning permission for a house within 5km of the Thames Basin Heaths Special Protection Area, after accepting the appellant’s clever solution to dealing with the restrictions applying to CIL contributions towards Suitable Alternative Natural Greenspace (SANG) (DCS Number 400-013-309).

Mitigation measures are normally required in the form of contributions towards SANG in order to ensure that recreational pressure from additional development does not have any significant effect on the special interest features of the SPA. Under Regulation 123 of the CIL Regulations, however, a planning obligation may not be taken into account if it would fund an infrastructure project for which there are already five or more obligations.

A unilateral undertaking was before the inspector which provided for a contribution towards the ongoing maintenance and enhancement of SANG. She noted that provision of SANG is usually caught by the pooling restriction under Regulation 123(3) of the Community Infrastructure Levy Regulations 2010. However, given that the contribution was towards ongoing maintenance and enhancement she was satisfied that this did not apply.

The contribution would meet the tests in Regulation 122(2) of CIL in that it was necessary, directly related to the development, and fairly and reasonably related in scale and kind, she determined. In light of this conclusion the proposal made adequate provision to mitigate any effects on the Special Protection Area, she decided.

If you find that there is no room for you to make provision towards SANG, therefore, see what the situation is with regard to maintenance.

The following DCP chapter is relevant: 4.61

Rave on

Whilst we are on the subject of definitions, here is an appeal case in which the inspector considers the definition of a nightclub (DCS Number 400-013-247).

Planning permission had been granted for the use of edge-of-centre premises in west Yorkshire as an internet lounge and sandwich bar. An enforcement notice alleged an unauthorised material change of use to uses including a nightclub and shisha lounge.

The appellant argued that the uses of the building did not include a nightclub. He suggested that, although a nightclub ‘is difficult to describe…it most certainly would involve opening until the early hours of the morning and the sale of alcohol’. He stated that the venue was not open until 0500 hours and there was no sale of alcohol.

The inspector accepted that there is no statutory definition of ‘nightclub’. She reasoned, however, that the appeal could still be considered by establishing the ordinary meaning of the word. She recorded that the Concise Oxford English Dictionary defines a nightclub as ‘a club that is open at night and provides refreshment and entertainment’. That description, which was broader and more flexible than the appellant’s, must be right, she determined. A nightclub would inevitably operate at night but exact opening and closing times would vary, and the sale of alcohol was not essential. She concluded that nightclubs can be aimed at different customers and provide different types of entertainment and refreshment.

The following DCP chapter is relevant: 17.1112