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Case law on incidental outbuildings

An inspector dealing with an appeal against the refusal of an LDC for two incidental outbuildings in the garden of a house in west London has very neatly set out the case law on the subject which may be helpful to cut out and keep (DCS Number 400-011-972).

The council argued that the combined floorspace of the proposed outbuildings was too large to be required for purposes incidental to a dwellinghouse. The inspector explained that:

There is no statutory definition of the word “incidental”. However, case law provides authority for how this should be interpreted by decision makers. These authorities indicate that games rooms, play rooms and utility areas are capable of being a type of use that is incidental to the enjoyment of a dwellinghouse. In the leading case of Emin v SSE [1989] it was held that it was wrong to conclude that an outbuilding could not be said to be required for a use reasonably incidental to the enjoyment of a dwellinghouse as such because it would provide more accommodation for secondary activities than the dwelling provided for primary activities. Nevertheless, the test must retain an element of objective reasonableness and should not be based on the unrestrained whim of an occupier: Wallington v SoS for Wales [1990]; Holding v FSS [2004]; Croydon LBC v Gladden [1994]. On the other hand, a hard objective test should not be imposed to frustrate the reasonable aspirations of a particular owner or occupier so long as they are sensibly related to the enjoyment of the dwelling. These judgments and the findings therein serve to illustrate that with each case it is a matter of fact and degree based on the particular circumstances: Peche d’or Investments v SSE [1996].

Accordingly, the inspector concluded that each case is fact sensitive and that the right approach based on case law is to apply an element of objective reasonableness. In the case before him he found, having regard to the particular facts and circumstances, that the proposed development fell within the definition of buildings required for purposes incidental to the enjoyment of a dwellinghouse. Accordingly, it was permitted development by virtue of the rights conveyed by Class E of Part 1 of Schedule 2 of the GPDO 2015.

The following DCP chapter is relevant: 4.3445

No kidding, Sherlock

The parties at appeals relating to residential development will often press to argue about whether or not the planning authority can show a five-year housing land supply. In relation to an appeal for up to 61 dwellings in Derbyshire the inspector pointed out, however, that it was not for him to carry out a forensic analysis of the housing statistics (DCS Number 200-005-175). In support of this stance he referred to the Planning Practice Guidance which advises that up-to-date housing requirements and the deliverability of sites to meet a five-year supply will have been thoroughly considered and examined prior to adoption, in a way that cannot be replicated in the course of determining individual applications or appeals where only the appellant’s evidence is likely to be presented to contest an authority’s position. Similarly, the Court of Appeal in St Albans City and District Council v Hunston Properties Ltd and Secretary of State for Communities and Local Government, [2013]  found that, “It is not for an inspector on a Section 78 appeal to seek to carry out some sort of local plan process as part of determining an appeal, so as to arrive at a constrained housing requirement figure. An inspector in that situation is not in a position to carry out such an exercise in a proper fashion, since it is impossible for any rounded assessment similar to the local plan process to be done. That process is an elaborate one involving many parties who are not present at or involved in the Section 78 appeal.”

The inspector’s approach in the case before him was to note that the appellant’s evidence was untested whereas the council’s approach had been thoroughly tested in local plan examinations. He concluded that he had little reason to doubt the council’s position that a housing land supply in excess of five years existed.

The following DCP chapter is relevant: 7.131

Solar sequential search steer

Those involved in the field of solar energy will be familiar with paragraph 112 of the NPPF which states that “where significant development of agricultural land is demonstrated to be necessary, local planning authorities should seek to use areas of poorer quality land in preference to that of a higher quality.” An inspector dealing with an appeal against the refusal of a solar farm on farmland in Berkshire recognised that an alternative site search report is therefore implicitly required (DCS Number 400-011-885). He acknowledged that there is no detailed guidance on how such a search should be undertaken or, specifically, what area should be covered.

The report accompanying the planning application stated that  ‘…one of the biggest constraints which has to be considered when developing a ground-mounted solar scheme is gaining access to the local electricity grid’, the inspector recorded. The area of search, centred on the proposed grid connection for the appeal scheme, was set at 5km although the report noted that about 2km would be preferable. This approach had been criticised by some as covering an area that was too small, the inspector noted. He reasoned, however, that it cannot be the intention of policy and guidance that every potential alternative location should be examined. It seemed reasonable and proportionate to him to limit the area of search to that likely to identify true alternative sites using the same grid connection.

Whilst this decision clearly doesn’t offer hard and fast rules about the extent of an alternative site selection search, it might be valued in offering a bit of a steer.

The following DCP chapter is relevant: 26.536

The pendulum swings

The oscillations of the planning system in accord with contemporary political thinking are always fascinating to observe.

It seems like only yesterday that every last back garden was being sized up for its potential for residential development, residential curtilages being identified as brownfield land and accordingly suitable to make a contribution towards the nation’s housing land supply. In fact, it was in March 2012 that the pendulum reached the limit of its arc, garden grabbing having got out of hand, and the NPPF defining previously developed land as excluding land in built-up areas such as private residential gardens.

A recent appeal against the refusal of permission for two bungalows in the rear garden of a house in a suburban area in Yorkshire (DCS Number 400-011-910) shows just how much things have changed in that time. The inspector held that the position of the proposed dwellings would be at odds with the overall pattern of development, where the vast majority of properties had a street frontage. Furthermore, a supplementary planning document was an up-to-date part of the local policy framework, adopted in 2012, and sought to prevent backland development. The properties would not have a street frontage and thus would not actively contribute to the wider streetscene or assist in reinforcing a sense of place. Moreover, he considered that the proposed driveway, with a width of some six metres, and the curtilage parking beyond, would create a sizeable area of hard standing that would cover a substantial part of the appeal site. He recognised that there were at least two other lengthy accesses serving backland development near to the site but found that these were an anomaly in an area where the predominant pattern of development was of dwellings with a street frontage. He pointed out that the arrangement was historic and had been undertaken prior to the current policy context. It did not set a desirable precedent for the development proposed which would cause material harm to the established character and appearance of the area, he concluded.

The following DCP chapter is relevant: 7.1326

Glastonbury – the fun stops here

We make no claim to be down with the kids here on the Blog but we are aware of the doleful refrain that it is now only the middle-aged and middle class who can afford tickets for the Glastonbury Festival. That being the case, those of a conservative outlook on their way to the festival next week will no doubt be nodding their approbation of a recent appeal decision concerning a mural which has been painted on the gable end of a listed building in the town (DCS Number 400-011-784).

It was apparent to the inspector that the town has an alternative image and he noted other murals there. Nevertheless, he decided that due to its size and positioning the mural was a dominant feature, an impact which was exaggerated by the use of brightly coloured paint. Taken together with the complexity of the scene and the modern graffiti styled text these characteristics made the mural a focal element of the listed building that was at odds with its special interest, he held. Upholding the council’s refusal to grant retrospective listed building consent he concluded that the simple form and traditional materials of the appeal building and those adjoining it were overwhelmed by the mural.

Will the appellant paint over the mural or simply wait for the customary festival rain to wash it off, we wonder…

The following DCP chapter is relevant: 27.2328

Scale again – minor material amendments

The issue of scale was again given consideration in relation to an application for modifications to a proposal for the conversion of a building in Hertfordshire to a dwelling (DCS Number 400-011-865).

The planning authority had refused to vary a condition on the outline permission for the scheme which required it to be carried out in accordance with the approved plans. The Planning Practice Guidance advises that there is no statutory definition of a ‘minor material amendment’ but it is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved, an appeal inspector recorded. She noted that planning permission had been granted for a one bedroom single-storey dwelling.  The proposed amendments included: raising the eaves height by some 1.4 metres; raising the ridge height by some 1.2 metres; creating habitable roof space for an additional bedroom and bathroom; the insertion of two front dormer windows some 1 metre and 1.4 metres in width; the addition of a ground floor window; and the addition of a planting bed to the front and an increase in size of a central planter.

In the inspector’s opinion, the amendments would substantially alter the scale and nature of the approved dwelling. In particular, it would double the number of bedrooms. The increase in ridge height together with the proposed two front dormer windows would also appear substantially different from the approved roof structure with skylights.  Accordingly, she concluded that the proposal did not constitute a ‘minor material amendment’ under the Section 73 procedure and dismissed the appeal.

A common theme to note in this regard is that inspectors do seem to be comparing the scale of the proposed changes against the overall scale of the scheme.

The following DCP chapter is relevant: 5.135

On the definition of scale and layout

The following case provides useful guidance in respect of the definition of scale and layout in relation to reserved matters applications.

A Somerset council had costs awarded against it at appeal after refusing a reserved matters application on the basis that the mix of houses proposed, in terms of sizes and number of bedrooms, failed to reflect the identified local need within the sub-market housing area or the district as a whole (DCS Number 400-011-800).

The application sought the approval of reserved matters in respect of layout, scale, appearance and landscaping. The council contended that the issue of housing mix was relevant to the consideration of layout and scale.

The inspector decided that Article 2(1) of The Town and Country Planning (Development Management Procedure) (England) Order 2015 includes definitions which provide a helpful starting point and a legal basis for determining what can and cannot be considered at the reserved matters stage. He noted that the term scale is defined as “the height, width and length of each building proposed within the development in relation to its surroundings”, and that layout should be interpreted to mean “the way in which buildings, routes and open spaces within the development are provided, situated and orientated in relation to each other and to buildings and spaces outside the development”. He agreed that the number of bedrooms contained within a dwelling is proportional to its size. However, he found that it would be stretching a point to argue that a local planning authority has influence over the configuration of the internal accommodation, simply by virtue of its ability under the Order to exercise control over the external dimensions. The phraseology used within the Order indicated to him that the issues of scale and layout are principally concerned with the manner in which the buildings physically relate to one another and their surroundings and are not a mechanism for controlling the mix of housing.

Awarding costs against the council, the inspector concluded that housing mix was not a legitimate matter for consideration given the absence of any condition on the outline permission.

The following DCP chapter is relevant: 5.132

A note on the removal of ancillary occupation conditions

Readers might wish to be alerted to a recent appeal decision in which the inspector declined to remove an ancillary occupation condition on the basis that it would change the nature of the development (DCS Number 400-011-802).

Permission had been granted in 2005 for the conversion of a coach house in Devon to ancillary residential accommodation. As is usual, the permission carried a condition stating that the building should not be occupied other than for purposes ancillary to the residential use of the dwelling.

The inspector pointed out that the Planning Practice Guidance states that although a condition can be used to make a minor modification to a proposal, a condition that would make a development substantially different from that set out in the application should not be used. He reasoned that, by extension, this principle applies to a case where the removal of a condition would significantly change the nature of the development. The application had been made under section 73 of the 1990 Act and if he were to allow the appeal this would not lawfully amend the permission for the original development which would remain as conversion of the coach house to form ancillary residential accommodation. Accordingly, he concluded that the appeal must be dismissed.

The inspector explained that if the appellant wished to change the use of the ancillary accommodation to a separate dwelling, then it would be necessary to submit an application in these terms.

The following DCP chapter is relevant: 10.43

Ready for takeoff

The runway expansion contest between Heathrow and Gatwick pales into insignificance beside what a Cambridgeshire planning authority has been dealing with recently. An inspector has quashed an enforcement notice which required the use of a garden shed at a house as a flight simulator facility to cease, deciding that no material change of use had occurred (DCS Number 200-005-093).

The appellant had a keen interest in aviation, the inspector recorded, and had constructed a flight simulator based on the cockpit of a Boeing 737 within the shed. An adjoining room in the shed served as a workshop and also housed the associated computers. The shed also contained a small reception area with seating and a kitchenette. On the wall was a TV monitor on which the operation of the flight simulator could be viewed.

The appellant stated that he built and originally used the simulator for his own personal hobby purposes but extended the use to friends and family. He subsequently developed a website on which a range of flight simulator experiences were advertised commercially. The website indicated that the facility was open seven days a week from 09:00 to 19:00 and there were links to social media.

The inspector was of the view that the presence of a flight simulator in a garden shed is not a usual activity in a residential area. However, he judged that its use did not appear to have been at a level which had altered the residential character of the planning unit to a significant degree. He found that its use had minimal visual impact, its noise impact was at a low level when in operation, and the additional pedestrian and vehicular movements appeared to have little impact on the surroundings.

Nnnneeyaooumh!

The following DCP chapter is relevant: 12.838

PPS7 Annex A – gone but not forgotten

A recently decided appeal relating to a proposed farm worker’s dwelling in the county of Durham (DCS Number 200-005-060) brings us back to a Blog from February Nearly four years on and deleted guidance is still in use. In that Blog we noted inspectors’ unwillingness to let go of Annex A to PPS7 notwithstanding that this guidance has been deleted. In the Durham appeal the inspector noted that no accounts had been submitted to confirm the viability of the farm business. The appellant argued, however, that the Embleton Parish Council & Anor, R v Gaston [2013] case concluded that there is no need to produce financial justification for a farm dwelling. The inspector acknowledged that this judgment highlights that the test under paragraph 55 of the NPPF is different from that under Annex A of PPS7, in that it simply requires a judgement of whether the proposed agricultural enterprise has an essential need for a worker to live there or not. Nevertheless, she recorded that there is no indication that in making that judgement, the decision-maker does not need to take any account of financial evidence, and in fact in the Embleton case financial evidence had been submitted by various parties to the decision-maker.

Clearly, Annex A is still sorely missed by inspectors. Can’t we just let them have it back?

The following DCP chapter is relevant: 9.331