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Glamorous camping

Since glamping is a relatively recent phenomenon it might be helpful to note an inspector’s ruling that glamping pods need to be treated as static caravans.

In (DCS Number 400-014-852) the appellant argued that the proposed pods were not caravans and therefore did not conflict with development plan policy, which presumed against the development of new static caravan sites in the county given that there was already sufficient provision. The inspector disagreed. Whilst pods are not specifically legally defined he agreed with the council that they fall within the statutory definition of a caravan, that is, any structure designed for human habitation which is capable of being moved from one place to another. The appellant had confirmed that the pods would be kept permanently on the site, that they would be ready assembled when delivered and that they would be connected to an electricity supply. To the inspector’s mind the pods were akin to static caravans, notwithstanding their different appearance and their limited living accommodation. The proposed development would therefore be in conflict with development plan policy, he decided.

The following DCP section is relevant: 24.2

Important work

Taken from a recent appeal decision (DCS Number 400-014-884):-

“A signed and completed S106 Unilateral Undertaking has been submitted by the appellant. It would secure financial contributions from the appellant of £73.65 towards the provision of wheeled bins for the development. The Huntingdonshire Developer Contributions SPD 2011 sets out the requirements and justification for Council to secure contributions towards appropriate householder waste storage containers on development sites. I therefore agree that a contribution would be necessary, directly related, and fairly and reasonably related in scale and kind to the proposed development, in accordance with Community Infrastructure Levy Regulation 122, and Paragraph 204 of the Framework.”

A S106 for a wheelie bin!?!? We have harped on about this before, in What a waste, but have we really got nothing better to do?

The following DCP section is relevant: 4.61

Comeuppance

Comeuppance – a delightful old word which, according to the Oxford English Dictionary, derives from ‘come up’ in the sense of coming up before a judge or court for judgement.

It seems appropriate to say, then, that an appellant seeking prior approval under Part O of the GPDO for the residential conversion of a building in Essex which had been in unlawful use as a hostel (DCS Number 400-014-790) got their comeuppance when an inspector judged that it was the actual use rather than the lawful use on the relevant date which mattered.

In order to meet the requirements for permitted development as outlined in the GPDO, the building must have been in a use falling within Class B1(a) on the trigger date of 29 May 2013, the inspector recorded. The appellant acknowledged that the building was in use as a hostel on the that date. The inspector agreed with the appellant’s counsel that the lawful use of the building on that date was Class B1(a). She disagreed, however, that the unlawful hostel use should be disregarded for the purposes of the appeal. Whilst she appreciated the appellant’s argument that the permitted development right was introduced to allow the conversion of empty or underused offices to dwellings, it nonetheless remained that the lawful use was office use whereas the actual use had been as a hostel. Consequently, she concluded that the building was not in office use on the trigger date, as required by the GPDO.

The inspector concluded that the appeal did not meet the criteria set out in the GPDO. As such, it could not be considered to be permitted development for assessment under the prior approval process.

The following DCP section is relevant: 4.3423

Nothing in life is certain

For those of us who thought that the decision in Oxfordshire County Council v Secretary for State for Communities and Local Government and others [2015] had settled the argument about whether councils are entitled to claim monitoring fees in relation to Section 106 agreements, the inspector’s decision in (DCS Number 200-006-210) makes discomfiting reading.

In this decision the inspector acknowledged that the judge in Oxfordshire County Council had taken the view that the inspector in the case before her was entitled to conclude that the costs of administration and monitoring for the discharge of its functions under section 106 of the 1990 Act would be included in Oxfordshire County Council’s resources and budget.

However, after careful reading of the court judgment the inspector in (DCS Number 200-006-210) came to the conclusion that “…in considering the Section 106 Agreement submitted to it and in exercise of its planning judgment, the Council was entitled to take the view that monitoring fees were necessary to make the development acceptable in planning terms. That will always be a matter of planning judgement based on the particular facts of each case and would need to be justified on a case by case basis.”

For more detail on this read paragraphs 28 to 31 of the inspector’s decision in respect of the appellant’s costs claim.

The following DCP section is relevant: 4.6

Same old, same old….

….is a phrase “used to convey that something is drearily predictable or familiar”, according to Google. With this definition in mind an inspector dealing with a flawed enforcement notice directed at storage containers in Dorset could not have been blamed for feeling that the task before him was just a bit same old, same old.

Inspectors are made of sterner stuff, however, so he set to and corrected the notice, putting right mistakes that he has no doubt put right many times before. We have set out his corrections below – readers new to enforcement matters or dealing with them on an irregular basis might wish to make a note. Here he goes:

“First, the allegation describing the use of land for “siting” containers is inadequate.  The principle established long ago in the Court of Appeal judgment in the case of Wealden District Council v Secretary of State for the Environment [CA 1988] applies here: where an enforcement notice is directed at the placing on land of a movable object (in the Wealden case, a caravan), the mere “siting” of the object is not a sufficient allegation, because that is not the real use of the land.  To define the use of the land properly, the allegation has to describe the purpose for which the object or objects are on the land.”

“Second, the mere “use” of land does not amount to “development” as defined in Section 55 of the 1990 Act.  It is the act of making a material change of use which is development requiring planning permission.”

“The third fault in the enforcement notice is that the requirement to leave the land in “a satisfactorily tidy condition” is imprecise.  What may appear unsatisfactorily untidy to one person may be satisfactorily tidy to another person.”

For further elaboration, check out (DCS Number 400-014-704).

The following DCP section is relevant: 4.533

Class P access and curtilage

A council in Devon has had costs awarded against it after mistakenly refusing prior approval for the conversion of a Class B8 storage building to a dwelling (DCS Number 400-014-711).  

The council had refused permission on the basis that the vehicular access to the building and land proposed for conversion was not included within the application site, the inspector noted. In the council’s view, had the access been included within the application site, the residential curtilage proposed would exceed the footprint of the building, in conflict with Schedule 2, Part 3, paragraph P.3(b) of the GPDO.

The inspector explained that ‘curtilage’ and ‘access’ are separate and distinct terms as referred to within the GPDO (at Schedule 2, Part 3, paragraph P.3 and at Schedule 2, Part 2, Class B thereof respectively). He also explained that the definition of curtilage within Class P, essentially land ‘immediately beside or adjacent’ would not logically apply to many vehicular accesses to storage or distribution facilities. Furthermore, he found no explicit requirement within the GPDO for access to be included within curtilage proposed for the purposes of Class P.

The inspector therefore found that unreasonable behaviour resulting in unnecessary or wasted expense had been demonstrated, and that a full award of costs was justified in line with the Planning Practice Guidance.

The following DCP section is relevant: 4.3423

You’ve got no evidence!

Following the Planning Inspectorate’s apology to Richmond upon Thames council for inconsistent decision-making we are keeping a close eye on inspectors’ conclusions in respect of the requirement for affordable housing contributions on small sites.

Readers will no doubt be aware that the Written Ministerial Statement of November 2014 stipulated that affordable housing contributions should not be sought on residential schemes comprising fewer than ten units or less than 1,000 square metres of floorspace. Upholding Richmond’s complaint, PINS clarified the issue of the weight to be given to the WMS as follows:

“Local policies still have weight as the starting point from S.38(6) and the WMS comes into play as a material consideration which post-dates the plan, and which has to be balanced against the plan and the evidence base supporting the LPA’s application of the policy.  The decision maker therefore has discretion in applying his or her judgment as to where the balance should lie, drawing on the evidence presented.”

As a point of interest we thought we would look at a couple of recent decisions in other local authority areas where permission was sought for small residential developments without affordable housing contributions, and see how they fared when tested against PINS’ current advice. Both inspectors appear to follow the advice faultlessly but the outcomes differ, one being allowed, the other being dismissed. For local authorities the point to note is that it all comes down to evidence.

In the first case, (DCS Number 400-014-658), the council stated that the appeal site fell within the most unaffordable area of the country and that this, coupled with higher dependence upon smaller sites, justified a departure from government policy, and consequently development plan policies should continue to be applied. The inspector found, however, that there was no substantive evidence before her to support the council’s position in this respect. She allowed the appeal.

In (DCS Number 400-014-681), on the other hand, the inspector recorded that the council’s appeal statement outlined detailed evidence of continuing worsening trends in respect of severe affordability issues in the borough, with an extremely adverse relationship between house prices and rents on the one hand and typical incomes on the other, in an area of acknowledged severe deprivation. The evidence also explained the critical role that development of small sites had to play in the delivery of new housing in a densely built urban borough, with over one third of new provision coming from sites of 10 units or fewer. He dismissed the appeal.

So, be careful to ensure that claims relating to local affordability issues are substantiated by evidence.

The following DCP section is relevant: 8.2354

Re-place-ment

Q When is a replacement not a replacement?

A When it’s not in the same place

A proposal to demolish an outbuilding and construct a garage/office/annexe at a house in the green belt in Derbyshire was turned down after an inspector decided that it could not be considered to be a replacement building in the terms of paragraph 89 of the NPPF (DCS Number 400-014-694).

The inspector acknowledged that the site already benefited from permission for the demolition of the large outbuilding adjacent to the dwelling and its replacement with a new garage with home office and single storey dependent relative accommodation. The appeal scheme proposed an identical building to that already approved but located approximately 80 metres to the rear of the dwelling at the rearmost part of the garden.

The inspector also acknowledged that there was a building of a similar size and scale to the proposed building within the site, and that the appellants intended to demolish this and were prepared to accept a condition to that effect. However, she found that the proposed building would be in a materially different location from the existing outbuilding, some 80 metres from the rear of the dwelling. The building would not therefore be put back in its previous position in the meaning of the word ‘replacing’ as defined in the dictionary, she reasoned. Given the considerable distance between the existing outbuilding to the rear of the dwelling and the proposed building, she was not persuaded that the proposal could justifiably be considered a replacement building for the purposes of paragraph 89 of the Framework.

The inspector also found that the proposal would be more visually prominent than the existing outbuilding and would therefore have a greater visual impact resulting in moderate harm to the openness of the green belt.

We can understand the inspector’s concern about visual harm, but was it right to say that the building would not be a replacement when it would be within the same curtilage? What do readers think?

The following DCP section is relevant: 4.251

It takes all sorts

An appellant seeking outline permission for a dwelling adjacent to a sweet factory in west Yorkshire (DCS Number 400-014-654) has enjoyed the taste of success.

An odour assessment undertaken by the appellant reported that barely detectable “delightful” scents were experienced within the site boundary. The factory and the council disputed the findings of the report, however, the factory saying that the odour could be a lot stronger than reported and that strong smells were noticed throughout the town.

The inspector found that the general consensus amongst locals was that the smells were pleasant. In her judgement, therefore, they were not a nuisance. In any event, she reasoned, one more dwelling in the town would not threaten the viability of the factory if so many other residents could smell the sweets too.

Sweet!

The following DCP section is relevant: 8.337

Must try harder

The Blog recently reported a case in which an inspector was scathing about a council’s failure to substantiate a costs claim. It gets worse! In the appeal reported in First written warning the council did at least argue its case in relation to the unauthorised development. In a more recent case, however, (DCS Number 400-014-612) the council hasn’t even troubled to do that much. The inspector’s decision was short, and consists of little more than his findings that: the appellants were of the view that the extension would be lawful because the operations proposed would be permitted development; the council had not provided any justification as to why the appellants’ contentions were not correct; having had regard to the GPDO he agreed with the appellants. Unsurprisingly, the inspector awarded costs against the council. He found that the council had failed to:

  • determine the three applications that were made to them.
  • give the applicants a proper explanation as to why they were unable to determine the applications within the prescribed limits.
  • explain why permission would not have been granted had the application been determined within the relevant period.
  • respond to the applications for awards of costs made by the applicants.

This kind of behaviour is really not going to improve our standing in the community.

The following DCP section is relevant: 5.34