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Step into Narnia for a basement lighting solution

An ingenious lighting solution has resolved concerns about inadequate lighting in a basement flat in east Sussex, while also conjuring up images of a portal through the back of a wardrobe (DCS Number 400-013-594).

A daylight report had indicated that daylight to one of the bedrooms had not met the Building Research Establishment (BRE) Guide to Site Layout Planning for Daylight and Sunlight requirement. At her site visit, however, the inspector saw that there was now a glazed light shaft serving the bedroom with light from the street level above, together with a mirrored light shaft that had been installed adjacent to it, which reflected daylight into the room. She observed that, internally, the glazed light shaft resembled a cupboard with a clear glazed door and the mirrored shaft reflected light through a window unit. She found that the light received in the room from the mirrored shaft was very bright, such that the residents had fitted a blind to the window to control it. A further report indicated that with a mirrored light shaft installed the average daylight factor in the bedroom would be 1.29% and would thus exceed the BRE requirement of 1.00%. The inspector concluded that the overall level of daylight in the bedroom was adequate, largely due to the light received from the mirrored light shaft.

Plenty to reflect on here.

The following DCP section is relevant: 4.1353

Defending the sustainability test for barn conversions

Planning permission for a barn conversion in Gloucestershire has recently been turned down at appeal, the inspector finding that it was located in an unsustainable location (DCS Number 200-005-778). The inspector found a high probability that there would be a high dependency on the private car to access services and on that basis the proposal would conflict with local plan policy.

The appellants argued that the proposal could occur without the need for planning permission, but the inspector noted that an earlier proposal under the GPDO had been refused by the council. The inspector acknowledged that the GPDO does not attach a sustainability test in respect of the location of agricultural buildings where it is proposed to convert into a dwelling, but held that the policies of the development plan were clear that the location of development needed to be sustainable. The proposal before her related to an application for planning permission and she therefore maintained that she was required to determine it in accordance with the development plan unless material considerations indicated otherwise. She concluded that the location of the appeal site conflicted with the settlement strategy for the area and was not in a sustainable location. The tests applied to development permitted under the GPDO did not outweigh the harm, she decided.

So, the residential conversion of the barn would not have been refused on sustainability grounds if it had been permitted development, but must be refused on sustainability grounds because it needs planning permission. The Blog would be hard put to defend the logic of this to the appellant. Would readers be able to assist?

The following DCP section is relevant: 10.1361

The rights of the child

Children’s rights are not often discussed in appeal decisions but Christmas seems an appropriate time to record the consideration given to the interests of children set out in the planning system.

In an enforcement case concerning the retention of roof extensions to provide additional accommodation at a house in north London occupied by a family with eleven children (DCS Number 400-013-762) the inspector considered that the best interests of the children were of considerable importance. He noted that the PPG states that:

Local authorities need to consider whether children’s best interests are relevant to any planning issue under consideration. In doing so, they will want to ensure their approach is proportionate. They need to consider the case before them, and need to be mindful that the best interests of a particular child will not always outweigh other considerations including those that impact negatively on the environment or the wider community. This will include considering the scope to mitigate any potential harm through non-planning measures, for example through intervention or extra support for the family through social, health and education services.

The inspector reasoned that the PPG makes clear that the interests of children do not always outweigh other considerations. He acknowledged that the best interests of the children involved would clearly be served if the roof extensions remained in place given the need for additional accommodation. He concluded, however, that there might well be other design solutions for the roof extensions that had less visual impact, and it appeared to him that these had not been properly explored.

The following DCP sections are relevant: 4.1253 and 12.43

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