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Hug a tree

We were surprised, and a little alarmed, to find the following information in an appeal against a tree replacement notice relating to trees felled in southwest Scotland (DCS Number 400-015-800):

“The English publication “Tree Preservation Orders : A Guide to the Law and Good Practice” (2005) indicates that a provision in a tree preservation order prohibiting cutting down or removal of independent trees or groups of trees only applies to trees in existence at the time the order was made.”

Given that many tree preservation orders are of considerable age it seems almost certain that by now there must be many significant trees which are unprotected and therefore vulnerable. Whilst this could be useful information for developers it might be a signal to local authorities to review existing TPOs.

Curiously, the situation is different in woodlands. Here, the reporter noted, a tree preservation order covers trees in the woodland including those which have grown since the order was made.

The following DCP section is relevant: 29.1 

Parker Morris dead

An inspector dealing with an appeal against the refusal of planning permission for a one-bedroom dwelling in Cornwall (DCS Number 400-015-804) has announced the demise of the Parker Morris standards.

The inspector noted that the building would have an internal floorspace of approximately 33.5 square metres. He recorded that this would be short of the minimum recommended level of 37 square metres for a dwelling of this type set out in the Government’s nationally described space standards published on 27 March 2015.

The appellant argued that the floorspace would exceed the minimum 29.7 square metres recommended by the Parker Morris Committee in 1961. The inspector ruled, however, that these historic standards have no substantive bearing in the present. Irrespective of present or historic standards, he determined, the internal floorspace proposed would be limited so as to provide for cramped living conditions.

The family and friends of Parker Morris are in our thoughts at this sad time.

The following DCP section is relevant: 7.4338

An extraordinary car wash

An inspector has declined to issue a lawful development certificate for a car wash at a garden centre in north London, finding that it was an “extraordinary” use (DCS Number 400-015-727).

The appellants contended that the use of an area of land as a car wash facility, within an overflow car parking area, was ancillary to the primary use of the site as a garden centre.

The inspector explained that the essential feature of ancillary uses is that there should be some functional relationship between the ancillary use and the primary use. Moreover, that functional relationship should be one that is normally found, so that a car wash may reasonably be considered ancillary or incidental to the use of land as a car service or repair garage, or a petrol filling station, as both uses concern the care and maintenance of motor vehicles. Similarly, where the primary use is a retail use for the sale of goods to visiting members of the public, an ancillary use has to be of a similar nature.

In the inspector’s view a car wash, with fixed structures and equipment on a discrete area of land, did not meet such criteria. He determined that it was not ordinarily incidental to the primary use, a matter considered in Harrods Ltd v Secretary of State for the Environment Transport and the Regions v Kensington and Chelsea RBC [2002], where it was found that extraordinary activities, even though subordinate to the lawful use, are excluded if their introduction amounts to a material change of use of the planning unit. The Harrods case, he explained, involved the use of the roof of the store as a landing site for the chairman’s helicopter. He considered that the car wash use was similarly “extraordinary”; it was not a use that would normally be expected to be found at a garden centre, unlike, say, a franchise for the sale of garden sheds and summerhouses.

Accordingly, the council’s refusal to grant a certificate of lawfulness was well-founded and the appeal failed.

The following DCP section is relevant: 4.323

The plan-led system

In deciding an appeal against the refusal of planning permission for seven houses in north London (DCS Number 400-015-723) an inspector has highlighted the primacy of the development plan.

The proposal did not make provision for a contribution towards affordable housing, the developers drawing attention to national planning policy in the Written Ministerial Statement (WMS) of 28 November 2014, which states that “Due to the disproportionate burden of developer contributions on small-scale developers, for sites of 10-units or less… affordable housing and tariff style contributions should not be sought”. The inspector recorded that the WMS, taken together with the related sections of the Planning Practice Guidance are clear and unequivocal statements of national policy, and as a consequence are considerations to which he attached very considerable weight.

The inspector also, however, referred to the recent judgement of the Supreme Court [Secretary of State for Communities and Local Government v Hopkins Homes Ltd; Richborough Estates Partnership LLP v Cheshire East Borough Council  – also known as Suffolk Coastal DC v Hopkins Homes Ltd [2017] ], in particular paragraph 21, which makes clear that national policy “cannot and does not purport to, displace the primacy given by statute and policy to the statutory development plan. It must be exercised consistently with, and not so as to displace or distort, the statutory scheme.”

The inspector decided, accordingly, that whilst the WMS and PPG were both material considerations in the case they did not automatically displace the statutory primacy of the development plan in his assessment of the planning merits of the appeal. The appeal was dismissed.

The following DCP section is relevant: 4.011

Not quite the same

An inspector dealing with an appeal against the refusal of outline permission for the redevelopment of buildings in the Surrey green belt with up to 20 dwellings draws our attention to the interpretation of Illustrative drawings (DCS Number 200-006-528).

With regard to the openness of the green belt, the appellant emphasised that the layout plan was illustrative and that the proposal was for “up to” 20 dwellings. The inspector reasoned, however, that if permission were granted, then it would permit something at least close to that number of dwellings. A planning permission for a considerably lower number would be materially different, he ruled. He explained that, put the other way around, an application for approval of reserved matters to be made pursuant to the outline proposal if permitted, would have to be for something numerically close to 20 dwellings, otherwise it would not be pursuant to that permission. It was therefore reasonable, he decided, to take the illustrative layout as something that would approximate to the form of development.

The following DCP section is relevant: 5.1313

Give cake a chance

We are wondering whether the planning system is getting a bit intolerant in its old age. We know that it is a matter of judgement as to whether or not to take action against a transgression of planning legislation, so shouldn’t there be a bit of latitude for business start-ups generally, and for cake specifically?

In (DCS Number 400-015-661) a retrospective application for cake fridges in the front garden of a house in Essex was dismissed. We appreciate that this arrangement might have appeared a little incongruous in the street scene. However, many a global corporation was founded in a garden shed. Bearing in mind that it had local support, was any way sought to support the business, in the interests of economic development and the Victoria sponge? Or are we sometimes a bit too ready to batter new enterprise?  

The following DCP section is relevant: 13.333

Just kidding around

Between ourselves, part of the fun of this job is in reading about the inventive and sometimes hilarious schemes people dream up to circumvent planning legislation. Here’s one you’ll like.

This case (DCS Number 400-015-641) involves an appeal against an enforcement notice requiring the removal of a goat shelter built on skids from agricultural land in Devon. The appellant contended that the shelter was a mobile field shelter that contravened no planning legislation. The planning authority, on the other hand, considered that the timber building constituted a building operation and was development within the meaning of s55 of the Act, and referred to the tests to establish whether a structure is a building on the basis of its size, permanence and attachment to the land (Barvis Ltd v SSE [1971] and Skerritts of Nottingham Ltd v SSETR [2000]).

In terms of size, the inspector considered that, at 7.2m by 3.6m, with an overhanging corrugated roof, the size of the shelter was not insignificant although it lacked a floor and was not attached to the ground by virtue of it being constructed on skids sitting on top of a bed of railway sleepers.

The appellant indicated that the shelter was currently sited in its original position and that previously it had been moved 6m to one side and 6m to the other side along the track created by the bed of sleepers. The inspector judged that this was a contrivance created solely for the purpose of demonstrating that the shelter could be moved and was very different from the usual type of moveable shelters such as mobile chicken or pig arcs which are moved for the benefit of the livestock and the land.  He explained that in the Skerritts case it was held that it is not the fact that a building is capable of being moved, but more of a question of how permanence is construed in terms of significance in the planning context. He reasoned that in this case, the visual and landscape impact would not be materially different whether the shelter was in the middle or at the end of the skids and consequently provided a degree of permanence not normally associated with genuinely mobile field shelters.

The inspector was satisfied that the shelter was of a size and significant degree of permanence to constitute operational development within the meaning of s55 and that planning permission was required.

Time to stop playing the goat.

The following DCP section is relevant: 4.3112 and 22.112

Prohibited development

More often than not, inspectors will strike out conditions removing permitted development rights, since Planning Policy Guidance advises that conditions restricting the future use of permitted development rights will rarely pass the test of necessity and should only be used in exceptional circumstances. In (DCS Number 400-015-542), however, an inspector decided that protection of the green belt provided those exceptional circumstances.

Outline planning permission had been granted for eight dwellings on a site in Warwickshire occupied by a collection of single storey workshops which were in a poor state of repair. The permission was subject to a condition removing permitted development rights in respect of enlargement, improvement or other alteration, additions to the roof or other roof alterations, porches, buildings incidental to the enjoyment of a dwellinghouse and the erection, construction, maintenance, improvement or alteration of a gate, fence, wall or other means of enclosure.

The inspector noted that the officer’s report associated with the original planning application stated that ‘with conditions to limit the extent of the built form’ it was considered the final development was unlikely to have a greater impact on the openness of the green belt and the purpose of including land within it than the existing development. The inspector  recorded that the PPG recognises that: ‘When used properly, conditions can enhance the quality of development and enable development proposals to proceed where it would otherwise have been necessary to refuse planning permission, by mitigating the adverse effects of development.’ He reasoned that if permitted development rights were exercised in the future, the individual and particularly the cumulative effect on the openness of the green belt could be significant. He considered that whilst the location of the site within the green belt might not, of itself, constitute exceptional circumstances, it was an important and relevant factor. The existing permission for eight detached dwellings on relatively generous plots provided significant potential for future extensions, additional outbuildings and other structures. The site was surrounded mainly by open fields rather than within a setting of significant existing development and it was away from the main town. Consequently, he found, the openness of the green belt could be significantly harmed by the exercise of permitted development rights.

The inspector concluded that a condition, albeit narrower than the original, that had the effect of controlling development which could be inappropriate in the green belt and detract from its openness was necessary and reasonable.

The following DCP section is relevant: 4.41 and 12.632


A ruling from an inspector who issued a lawful development certificate for a rear extension to a house in Northamptonshire (DCS Number 400-015-584) tells us that we can drop eaves from certain* permitted development calculations.

The council accepted that the extension complied with all the criteria and conditions of Class A, Part 1, Schedule 2 of the GPDO, other than criterion (i). To satisfy this criterion the extension must not be within 2 metres of the boundary of the curtilage of the dwellinghouse where its eaves height exceeds 3 metres, the inspector recorded. The side wall of the extension was not within 2 metres of the boundary of the curtilage, but the extended eaves of the roof of the extension was within 2 metres of the boundary and exceeded 3 metres in height. For this reason the council maintained that the extension did not comply with criterion (i) of Class A.

The inspector referred to the Technical Guidance to the GPDO. This refers to ‘any part of a proposed extension’ and the council regarded the extended eaves of the roof to be a part of the extension. The inspector reasoned, however, that diagrams and text of the Technical Guidance consistently refer to ‘walls’ as being the outer limits of permitted development. Furthermore, he noted, it is common practice for buildings to be measured, for setting out purposes and to assess their ground coverage, from the outer faces of their external walls. He added that measuring a building by taking into account eaves overhangs and gutters was imprecise. Also, an eaves overhang of a building or extension does not result in the building or extension being any higher than it would be without the overhang.

For all these reasons, he concluded, it is reasonable to assume that ‘any part’ of an extension refers to any external wall of the extension.  Therefore, the eaves overhang of the rear extension at the appeal dwelling could be disregarded to assess whether the extension complied with the provisions of Class A, Part 1, Schedule 2 of the GPDO.

The extension therefore satisfied criterion (i), and could thus be regarded to be permitted  development, he determined.

*Not all!

The following DCP section is relevant: 4.3421  

Flat earth theory

The not-infrequent ruling that a hard standing results in a loss of openness in the green belt and is therefore inappropriate development must cause some consternation for an appellant who is wondering how, when it’s only a few centimetres thick.

The inspector who explained that it is the use of the hard standing that causes the trouble is therefore to be commended (DCS Number 400-015-581). In this case an enforcement notice directed at a hard standing adjacent to a barn on a farm in Surrey was upheld. The inspector acknowledged that the area of hard standing by itself had a relatively minor impact on openness, being sited next to the barn and close to other buildings. However, it had to be viewed in the context of the likely use to which it was put, he said. The hard standing was occupied by several items of agricultural machinery and mobile attachments such as trailers and harrows, he observed. He judged that due to their solidity, height and bulk, they would not preserve the openness of the green belt. The planned storage of haylage on the area would add to the loss of openness and whilst this element of storage would be seasonal, in overall terms he concluded that the effect of the development on the openness of the green belt would be relatively permanent.

That explains it! Perhaps others might follow suit.

The following DCP section is relevant: 4.2513