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Does that make sense?

Readers might recall mention in this blog (Joined-up government?) of a case in which costs were awarded against a Devon council after it refused a prior approval application for a barn on the grounds that it would not be located in an agricultural unit (DCS Number 400-010-510). The council believed that the primary use of the land was equestrian. Such a decision was not an option for the council under the GPDO, the inspector ruled.

In another decision, however, a Surrey council’s decision was upheld after it refused a prior approval application for a barn on the grounds that it would not be located in an agricultural unit (DCS Number 400-010-883). The inspector was not satisfied that there was evidence of an existing agricultural trade or business. Accordingly, she upheld the council’s decision.

Unh?

The following DCP chapter is relevant: 22.1112

How to avoid sequential testing

An inspector has granted permission for a swingers club in a former agricultural building in Bedfordshire (DCS Number 400-010-769), deciding that conflict with the development plan is outweighed by other material considerations.

The council argued that the site is not in a sustainable location for the use due to its remote countryside location, and furthermore that the facility is a ‘town centre use’ and no sequential test had been submitted to demonstrate that there are no more sequentially preferable sites.

The inspector, however, reasoned that the reuse of the former agricultural building has a degree of sustainability. He also attributed weight to the appellant’s contention that the nature of the use is such that users of the facility prefer a discreet location, where there is a degree of anonymity. Whilst this might be possible in more urban or town centre locations, in his opinion it would be less likely to be the case. In addition, the inspector accepted that the use is likely to attract individuals and couples from further afield than the local area. Consequently, he considered it unlikely that they would use public transport to access the appeal site, even if were located in a town, and the fact that the use operates until 03:00 hours also added weight to the appellant’s argument that, irrespective of its location, the use of public transport is unlikely to be attractive, or even available, to his customers.

The following DCP chapters are relevant: 4.19 and 18.1314

Standard conditions for wind turbines

It can sometimes be difficult for the non-techie amongst us to draft or suggest conditions suitable for dealing with techie matters.

In (DCS Number 400-010-475) it was the potential impact of a wind turbine on broadband reception that was at issue. The proposal concerned a farm turbine in Carmarthenshire. Grants had been provided by the Welsh Government and the council to support the take-up of a broadband service provided by a private company.  The company raised concerns that the proposal would impact on their ability to deliver the service and could impact on communications links that provide a community Wi-Fi service in the area. In the absence of conclusive evidence on the matter the inspector decided that the best answer would be to attach a condition to the permission, reasoning that broadband speed tests are widely available and concerned individual customers should be able to demonstrate that problems had arisen as a result of the construction of the turbine. Accordingly, the following condition was imposed, modelled on a condition used in Norfolk.

“No turbine shall be erected until a written scheme to secure the investigation and alleviation of any electro-magnetic interference to broadband reception caused by the operation of the turbine has been submitted to and approved in writing by the Local Planning Authority. The scheme shall provide for the investigation by a qualified person acceptable to the Local Planning Authority of any complaint of interference with the existing broadband signal or any loss of broadband signal at a building which lawfully exists or had planning permission at the date of this permission where such a complaint is notified to the developer by the Local Planning Authority within 12 months of the First Export Date. Where any impairment is determined by the qualified person to be attributable to the wind turbine, then details of mitigation works shall be submitted to and approved in writing by the Local Planning Authority and shall be implemented in accordance with the approved scheme within 60 days of the notification of the complaint to the developer.”

The inspector modified the condition used in the Norfolk decision (DCS Number 200-000-238) as it contains a clause (see below) specifying that the impairment to broadband must be of a degree that makes the current broadband service inoperative and that a comparable, alternative broadband service is not available.

“No turbine shall be erected until a written scheme to secure the investigation and alleviation of any electro-magnetic interference to broadband reception caused by the operation of the turbine has been submitted to and approved in writing by the Local Planning Authority. The scheme shall provide for the investigation by a qualified person acceptable to the Local Planning Authority of any complaint of broadband loss at a building which lawfully exists or had planning permission at the date of this permission where such a complaint is notified to the developer by the Local Planning Authority within 12 months of the First Export Date.  Where any impairment is determined by the qualified person to be attributable to the wind turbine, and that such impairment is of a degree that makes the current broadband service inoperative and that a comparable, alternative broadband service is not available, then details of mitigation works shall be submitted to and approved in writing by the Local Planning Authority and shall be implemented in accordance with the approved scheme within 60 days of the notification of the complaint to the developer.”

In the Carmarthenshire case there didn’t appear to be any alternative broadband service. The inspector therefore did not agree that the impairment needed to be so severe as to render the current broadband service inoperative because the quality of broadband was a critical issue for businesses in the area.  He therefore deleted this clause from the condition.

Local authorities might find it useful to pin these conditions to the end of their lists of standard conditions.

The following DCP chapter is relevant: 26.5327

Evette the farm horse earns her pension

The owners of a barn in south Devon have their retired farm horse to thank for prior approval for its conversion to residential use (DCS Number 400-010-860).

The council argued that on the relevant date, 20 March 2013, the barn was used to house a horse and therefore the site was not used solely for an agricultural use. Rather, it was in equine use, or at best a mixture of agricultural and equine uses. The appellants, on the other hand, explained that Evette is an Ardennes draught horse. She was used as a working horse on the farm, and she grazed the land, with any winter feed being hay which was made on the holding.  While she retired in 2010, she continues to live in that way, roaming freely on the land for her own welfare, with the choice of using shelter when she wishes. The inspector recorded that it is generally accepted that grazing horses on land in such a manner is an agricultural, not an equine, use. On that basis, he determined that the proposal accorded with the requirements of Part 3, Class Q of the 2015 GPDO, and represented permitted development.

The uplift in the value of the barn ought to ensure that Evette is kept in carrots and mints as she lives out her days in the meadows.

The following DCP chapter is relevant: 4.3423

Just say no

An inspector has declined to support a local authority in Warwickshire in its attempt to improve parking near a tennis club, pointing out that planning conditions should not be used to address pre-existing problems (DCS Number 400-010-723).

The tennis and croquet club sought permission for a new squash court. Planning permission was granted subject to a condition which stated that notwithstanding the details shown on the approved plans, no development should take place unless and until details of improved car parking within the site had been submitted to and approved in writing by the local planning authority. The inspector recorded that one of the tests for planning conditions set out in paragraph 206 of the NPPF is that “A condition cannot be imposed in order to remedy a pre-existing problem or issue not created by the proposed development”. He did not doubt that local residents had longstanding concerns about on-street parking in the vicinity, which had obstructed private driveways, and possibly limited the opportunities for residents or their visitors to park conveniently close to their properties.  He acknowledged that it was very likely that at least some of the cars being parked at the roadside belonged to members or guests of the club. However, referring to the council’s parking standards, one squash court was required to provide two parking spaces and the planning application met this requirement. The inspector deleted the disputed condition and replaced it with a condition requiring the two parking spaces shown on the approved drawings.

The potential of new development to create or exacerbate parking congestion is often raised as a planning issue and it might be a matter of commercial judgement for developers as to whether or not to accede to overly demanding requests for parking provision. The case of the tennis club, where commercial considerations and time pressures might not have been its principal concerns, shows that sometimes a good strategy is to just say no.

The following DCP chapter is relevant: 4.1518

Joined-up government?

Part 6 of the GPDO deals with agriculture and forestry, Class A concerning agricultural development on units of 5 hectares or more which are reasonably necessary for the purposes of agriculture within the unit. A council in Devon was ruled to be mistaken, however, in declining to determine a prior approval notification for a barn on the grounds that it would not be located in an agricultural unit as defined within the GPDO and that the development was not considered to be in keeping with the provisions of the GPDO (DCS Number 400-010-510). Such a decision was not an option for the council under the GPDO, an inspector ruled. The council believed that the primary use of the land was equestrian. What it should have done, the inspector explained, was to determine the application before it rather than refusing to determine it. It could then have advised the appellant that it did not believe the GPDO permission could be relied upon and that the council might need to consider the expediency of taking enforcement action if the building were to be erected. Not only that, costs were awarded against the council because it had failed to deal properly with the application in accordance with established legal principles by making a purported decision which is outside the powers available to it under the GPDO.

Whilst the inspector is no doubt right about this it does seem that it would be a case of giving with one hand and taking away with the other.

The following DCP chapter is relevant: 22.1112

Equality of arms

We know that residents who wish to oppose a development in their local area can find the prospect of presenting their case at a hearing or inquiry intimidating. An inspector dealing with a proposal for a mixed use scheme in Kent (DCS Number 200-004-624) has usefully explained the extent to which an inspector is able to assist unrepresented parties as follows:

“Interested parties who took part in the Hearing, none of whom were represented, mentioned concern in passing about ‘equality of arms’, given the number of witnesses fielded by the appellant, who was represented at the Hearing by Queen’s Counsel. I am mindful, in this regard, of Article 6 of the European Convention on Human Rights, which seeks to ensure that people have an equal opportunity to put their case. However, it is not uncommon for parties to come to events such as this with varying levels of representation. Whilst individuals often appear unrepresented, Rule 9(3) of The Town and Country Planning (Hearings Procedure) (England) Rules 2000 allows that a person who is entitled to appear may be represented by another person. This can be a solicitor or barrister. Whilst not a common occurrence, it is certainly not unusual. Being very aware of the duties imposed on me as the appointed Inspector, in particular the duty to ensure that the Hearing was conducted fairly and that all participants were afforded the opportunity to present their cases whilst observing the rules that govern the conduct of such events, I assisted those opposing the development to present their cases, so far as I was able within the scope of the powers afforded to me and within the constraints of my own impartiality, having regard to the need to run proceedings as efficiently and effectively as possible.”

As this gives chapter and verse it might be an idea to tuck it away somewhere safe.

The following DCP chapter is relevant: 5.34

Where there’s a will…..

Here is an inspector using a pragmatic approach to dealing with the limitations of the prior approval procedure.

An application was made under Schedule 2, Part 3, Class O of the GPDO for the change of use of a property in southwest London from office use to a dwellinghouse but was refused by the council on the grounds of its impact in relation to transport and highways (DCS Number 400-010-764). The council would have granted the proposal if there was a mechanism in place whereby the occupiers of the building would be prevented from obtaining a residents’ parking permit but in the absence of any such mechanism, it had refused the application due to the unacceptable impacts on parking. A residents’ parking scheme was in place and the council was concerned that additional eligibility for residents’ parking would be unacceptable due to the levels of demand exceeding supply in the area.

The inspector referred to the advice in the PPG which stated that a negatively worded condition which prevents the development proceeding until an obligation is entered into can be appropriate in exceptional circumstances and where it relates to one of the matters under consideration. Since the only obstacle which stood in the way of the development proceeding was the need for an obligation to prevent future occupiers applying for or being entitled to a residents’ permit he was satisfied that such a condition was appropriate in the circumstances of the case.

Readers will no doubt be able to think of analogous examples where such an approach could be usefully employed.

The following DCP chapter is relevant: 10.3135

As Eurovision approaches….

Readers may recall mention in this column of an allowed appeal on the edge of a Gloucestershire village involving the erection of three dwellings (DCS Number 400-010-244). In that case, the inspector ruled that the site was not isolated within the meaning of paragraph 55 of the NPPF. ‘Isolated’ should have the everyday meaning of ‘lonely or remote’, he determined. In an appeal involving the erection of a holiday cottage near the Yorkshire coast, however, the inspector has interpreted ‘isolated’ as meaning a location outside a settlement (DCS Number 400-010-745). Accordingly, he dismissed the appeal, notwithstanding that the cottage would be sited between two existing holiday cottages close to the appellant’s house and only a few hundred metres from the settlement limit for the town.

As Eurovision approaches ……there comes a time for making your mind up, for making your mind up, for making your mind up……

The following DCP chapter is relevant: 9.13

The topsy-turvy world of flat amalgamation

See if you can make sense of these two decisions, issued on the same day in the same London borough.

In (DCS Number 400-010-690) an inspector declined to issue a lawful development certificate for the amalgamation of two flats into one, agreeing with the council that it was a material change of use within the meaning of section 55 of the Act and was therefore development requiring planning permission. The inspector referred to Richmond upon Thames v SSETR [2001], which concerned an application for a LDC for the change of use of a property from seven flats to a single dwellinghouse. In that case, the High Court adopted the principle that “The extent to which a particular use fulfils a legitimate or recognised planning purpose is relevant in deciding whether a change from that use is a material change of use”. In the current case both sides had submitted counsel’s opinion, the appellants’ counsel noting that there would be no effect on the residential character of the area. The council nevertheless took the view that a reduction in the number of flats in the building from four to three would be material because it would involve the loss of a residential unit at a time when there was a pressing need to retain the existing housing stock in the borough. The inspector agreed that, in line with Richmond, the use of the property as four flats rather than three fulfilled a legitimate and recognised planning purpose of sufficient significance to make the proposed amalgamation a material change of use.

On the other hand…..

In (DCS Number 400-010-693) a lawful development certificate was issued for the amalgamation of three flats into one dwellinghouse, the inspector finding that it would not constitute a change in the character of the use of the building or the area. Again, the council took the view that any amalgamation which includes the loss of a unit will be development which requires planning permission, reflecting increasing housing targets and the impact that amalgamation was having upon the progress towards achieving these. The inspector, however, considered that this failed to take account of the principal test established through the courts, particularly in Panayi v SSE [1985], which is the effect on the character of the area. He concluded that the council’s approach flies in the face of court authority and suggests that general concerns about housing provision and the loss of small units, not even supported by an adopted local plan policy, should trump any material consideration of the impact on the character of a specific area. He was satisfied that the proposed use would not result in a material change in the character of property or the residential area and on this basis would not amount to a material change of use.

Beats us.

The following DCP chapter is relevant: 11.1112