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Nursery school

A children’s nursery in Hertfordshire has had its claim for a certificate of lawfulness for the installation of a new modular building turned down, an inspector finding that the nursery was not a school for the purposes of Class M of Part 7 of Schedule 2 to the GPDO (DCS Number 400-017-867).

Part M, the inspector recorded, grants planning permission for the erection, extension or alteration of a school, college, university or hospital building. He ruled that “In the absence of any clear indication in the GPDO that the definition of “school” should be taken as including all registered nurseries, …. I consider that no such inference should be made.”

The council noted that Class M.1.(g)(i), so far as it concerns schools, college or university buildings, does not apply in any case unless the existing buildings are predominantly used for education. In light of this constraint, it argued that the predominant use of the existing buildings was for childcare, notwithstanding that the premises provided a certain amount of education, including pre-school classes. The inspector observed that, again, there is no clear definition of what the term “education” means in the context of Class M. However, he stated that had he been confident that the term “school” included registered nurseries generally for Class M purposes, he would have concluded that “early years provision” satisfied the relevant requirement.

So, the inspector was satisfied that the nursery was providing education, but nonetheless decided that it was not a school? How does that add up?

Part 7, Class M of the GPDO is set out at section 4.3426 of DCP Online and the planning considerations raised by day nurseries and playgroups are discussed at section 26.334.

Round the houses

An appellant contesting a council’s refusal to grant a certificate of lawful use for the use of land at his house near Bristol as a domestic garden has found himself dealing with a matter which can often fox local planning authorities (DCS Number 400-018-126). A previous Blog How many times?! gives just one example of a council having got it wrong.

Helpfully, the inspector identified the problem and set out the case law, pointing out that it was necessary to consider whether or not planning permission for the change of use was in fact needed. She recorded that section 55(d) of the Act provides that the use of land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such does not constitute development. Therefore, if the appeal land lay within the curtilage of the house its use as a domestic garden did not require planning permission and so was lawful.

The inspector explained that in the absence of any statutory or authoritative definition of the term “curtilage”, the Court of Appeal held in Dyer v Dorset CC [1988] that the term bears its restricted and established meaning connoting a small area forming part and parcel with the house or building which it contained, or to which it was attached. The Oxford English Dictionary definition was endorsed by the court as adequate for most present day purposes, namely: A small court, yard, garth, or piece of ground attached to a dwellinghouse, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwellinghouse and its outbuildings. The relevant authorities, the inspector continued, were later reviewed by the High Court in McAlpine v SSE [1995] , and three identifiable characteristics of curtilage were defined: firstly, it is confined to a small area about a building; secondly, it must be intimately associated with land that is undoubtedly within the curtilage; and thirdly, physical enclosure is not necessary, but the land needs to be regarded in law as part of one enclosure with the house.

Accordingly, before going on to determine the appeal, the inspector explained that the terms “curtilage” and “domestic garden” are not interchangeable; curtilage defines an area of land in relation to a building, and not a use of land.

Further case law on this subject, together with relevant appeal decisions, can be found at section 4.3444 of DCP Online.

Interesting observations

A householder appealing the refusal of a certificate of lawfulness for a rear extension to his terrace house in southwest London has offered a novel interpretation of the GPDO (DCS Number 400-018-014).

The appellant argued that the definition of rear and side walls is generally taken to apply to the main substance of a building, and that A.1(j)(iii) of Part 1 of Schedule 2 to the GPDO is intended to apply to extensions beyond the original width of the building, such as to the side of an end-of-terrace, semi-detached, or detached property, and not to extensions within the width of a mid-terrace property. The inspector ruled that, “despite these interesting observations”, for the very specific planning purposes of the GPDO, side and rear elevations of the original dwellinghouse are interpreted as any such elevations that form part of that building, irrespective of whether part of the main substance, or whether the building is part of a terrace, an end-of-terrace, semi-detached, or detached.

Good try, but no.

Extensive coverage of the meaning of Part 1 of the GPDO – Development within the curtilage of a dwellinghouse – can be found at section 4.3421 of DCP Online.

Permanent markers

In Just kidding around we reported an appeal case in which the issue of permanence was debated. Here’s another, not dissimilar, but which draws on some different case law. This appeal (DCS Number 200-007-302) concerns an enforcement notice directed at a freight container, sited in a Kent field, which was used for the storage of equipment associated with the cultivation of Christmas trees.

The appellant submitted that the storage container did not require planning permission because it did not amount to development within the meaning of section 55 of the Act. He argued that the placing of it on the land was not a building operation; the container did not rest on any foundations; it was relatively small in size and it was not connected to any utilities. Moreover, it was capable of being moved around the field either on logs or by attaching it to a wheeled container mover and pulling it with a quad bike.

The inspector recorded that relevant case law reveals that there is no single conclusive answer as to what constitutes a building operation. She explained that in Barvis v SSE [1971] three tests are set out; the size of the building or structure, the degree of permanence, and the degree of physical attachment to the land. No one factor is decisive. She also referred to the Woolley Valley case (R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012]) which concerned poultry units mounted on skids so that they could be pulled around the field by a tractor or a 4×4 vehicle when required. In this case the High Court held that the council had erred in law in taking too narrow an approach to the meaning of development. The term ‘building’ in section 336 of the Act has a wide definition which includes ‘any structure or erection’. Additionally, the council had not directed itself correctly in law on the issue of permanence, which has to be construed in terms of significance in the planning context. The poultry units were permanently in their field and there was no limit on the length of time that they would remain there. The ability to move them around the field did not remove the significance of their presence in planning terms. The visual and landscape impact of the units was not affected to any material extent by any periodic changes to their position in the field, the court determined.

Turning to the case before her, the inspector considered that, when viewed in the field against the backdrop of a hedge and new fencing, the size of the storage container was significant in the planning context. It had also not been moved since it was placed on the land and therefore had a permanent character. Whilst it was not physically attached to either the land or any utilities and there was no hardstanding underneath it to support it, she found as a matter of fact and degree that it was a building. Planning permission had not been granted by the council and so the matter alleged in the notice constituted a breach of planning control, she concluded.

More case law on size, permanence and physical attachment can be found at section 4.3112 of DCP Online and there is discussion about whether movable structures are development at section 22.112.

Snow joke

It’s no joke being a farmer in the current wintry weather conditions, so a cold-hearted attitude from the local planning authority is not likely to be met with good humour. Neither is the suggestion that one’s elderly mother should be required to vacate the farmhouse in order to make the dwelling available to the holding likely to be supported by an inspector, as a case in Yorkshire shows (DCS Number 200-007-293).

In this case the inspector noted that the appellant’s family had worked the farm for four generations over a period of some 400 years. The appellant had grown up in the farmhouse, left there when he married and had lived for a number of years with his wife and son in rented accommodation around three miles away, but this arrangement had become untenable. His 77 year old mother retained an active role in the business and lived in the farmhouse. He therefore applied for an additional agricultural worker’s dwelling.

The council recognised that the farm was a well-established business of substantial and expanding scale. However, it suggested that an annex could be provided to accommodate the appellant’s mother such that he and his family could also live in the farmhouse (thereby avoiding the need for a new dwelling). After reviewing the relevant case law set out in Keen v Secretary of State for the Environment and Aylesbury Vale District Council [1996] and Ford and Another v Secretary of State for Communities and Local Government [2007] the inspector determined that functional need is not a simple absolute; it is also necessary to have regard to other material considerations. Whilst mindful that a functional need for accommodation depends on the needs of the enterprise rather than the personal preferences or circumstances of the individuals involved, she reasoned that the appellant’s mother had no intention of leaving the farmhouse in the foreseeable future. Therefore, there was no indication as to whether or when the farmhouse would be likely to become available.

In the absence of any firm evidence to demonstrate that the farmhouse could accommodate the appellant and his family as well as his mother (or that she would be willing to downsize or share her home), and since it would be unreasonable to require the appellant’s mother to leave, the inspector was not persuaded that the existing farmhouse was available. That being so, and taking into account the benefits that would arise from the proposal, she concluded that there was an essential need for an additional dwelling to accommodate a rural worker.

For more on agricultural dwellings see section 9.334 of DCP Online.

Below the belt

You might think that subterranean development would not conflict with “The fundamental aim of Green Belt policy” which ”is to prevent urban sprawl by keeping land permanently open” (Paragraph 79 of the NPPF).

An inspector determining an appeal against the refusal of permission for a subterranean extension to a house in Worcestershire thought differently, however, (DCS Number 400-018-076). He noted that the construction of new buildings in the green belt should be regarded as inappropriate development, one exception being for “the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building”. The building had already been extended. The inspector calculated that, when comparing the original dwelling to the one that would result if the proposal were to go ahead, the outcome would be disproportionate. He accepted that there would be no significant harm to openness but nonetheless decided that the development would ….”conflict with the fundamental aim of Green Belt policy which is to prevent urban sprawl by keeping land permanently open”.

In northwest London, on the other hand, an inspector appears to have seen things the Blog’s way. This case (DCS Number 400-017-866) involved a proposal to construct a new basement beneath the existing house to provide leisure facilities including an indoor swimming pool, sauna and steam room. The inspector acknowledged that the new basement would add considerably to the internal floor area of the house. He reasoned, however, that it would not increase the footprint of the building and would not have a material effect on the external appearance of the building or on its visual bulk in the green belt. Accordingly, he concluded that the development could be categorised as not amounting to a “disproportionate addition” to the existing building and, hence, as “not inappropriate” development in terms of green belt policies.

Information concerning house extensions in green belt areas can be found at section 12.632 of DCP Online.

Lest we forget

As we approach the centenary of the ending of the First World War it’s rather nice to see planning inspectors doing their bit to preserve the memory of the fallen.

In County Durham an inspector decided that an agricultural shed would intrude into the verdant setting of a listed war memorial which was carefully positioned at a strategic bend in the road at the entrance to the village (DCS Number 400-018-114).

In Norfolk an inspector noted that the village war memorial had been listed as part of a nationwide thematic programme to list war memorials for the centenary of the First World War. He considered that it was a physical representation of the sacrifices of the community in the major conflict of the First World War (1914-1918), giving it both a local historical significance and a wider national significance. He decided that the activity associated with three bungalows would intrude into the prevailing sense of tranquillity for quiet reflection and contemplation that contributed to the significance of the designated heritage asset (DCS Number 400-018-127).

Well done, sirs. As the philosopher George Santayana said, “Those who cannot remember the past are condemned to repeat it.” And none of us want that.

Information concerning the control related to listed structures is set out at section 27.412 of DCP Online.

No filter

A local authority in Bedfordshire has suffered a bit of a system failure recently, and we are guessing that it was because the necessary filters were not in place. In (DCS Number 400-018-075) the council accepted an outline planning application for the conversion of stables and a barn to a dwelling. Clearly, this is an application that should not have been validated, or registered, or decided. Even worse, the error was not picked up by the council when the applicants took its refusal to appeal.

As the inspector explained, “Article 2(1) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 makes it clear that “outline planning permission” means a planning permission for the erection of a building, which is granted subject to a condition requiring the subsequent approval of the local planning authority with respect to one or more reserved matters”. It is not possible, therefore, under the provisions of the Order, to grant outline planning permission for the nature of the development for which permission is sought.”

Quite simply, you can’t have an outline permission for a change of use so send any such application straight back.

The rules concerning applications for outline planning permission are set out at section 5.131 of DCP Online.

What’s the point?

The DCP Blog appears to have been in good company recently as it seems that the Court of Appeal has also been musing the meaning of the Written Ministerial Statement on wind farms. In a case involving a 50m high wind turbine proposed for a farm business in Nottinghamshire the court ruled that the WMS requirement to ensure that planning impacts have been ‘addressed’ does not mean they have to have been ‘eliminated’, R on the Application of Holder v Gedling Borough Council [2018].

The judges said “The usual position when considering an application for planning permission is that a range of potential benefits has to be weighed against a range of incommensurable potential detriments. It is rarely the case that it can be said that every potential detriment has been eliminated, as opposed to being mitigated and outweighed by countervailing benefits”.

We know that that is the usual position which begs the question – what is the point of the WMS?

Perhaps the current minister would be so kind as to clear this matter up?

Wind farms are discussed at section 26.511 of DCP Online.

How many wind turbines?

Q: How many wind turbines does it take to make up a wind farm?

A: One, apparently.

On 18 June 2015 the then Secretary of State for Communities and Local Government, Greg Clark, issued a Written Ministerial Statement entitled ‘Local Planning’.

The Minister said ‘I am today setting out new considerations to be applied to proposed wind energy development so that local people have the final say on wind farm applications, fulfilling the commitment made in the Conservative election manifesto.’ He continued ‘When determining planning applications for wind energy development involving one or more wind turbines, local planning authorities should only grant planning permission if…..following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.’ (The Blog’s emphasis).

But how can one wind turbine reasonably be described as a wind farm? If it is accepted that ‘a reasonable man’ would not describe one wind turbine as a wind farm, which is the subject matter of the new considerations, this leads to the conclusion that one wind turbine ought not to be subject to the requirement to prove community backing. Which leads us on to ….. an off-grid cottage in East Sussex where an inspector rejected a proposal for (actually two) domestic wind turbines (still not what the term ‘wind farm’ would bring to mind) (DCS Number 400-017-880).

The inspector noted that, in terms of the Written Ministerial Statement, there was a difference between the parish council and some local residents who supported the proposal, and the planning committee councillors and other local residents living in the immediate vicinity who objected to the proposal. There did not appear to be a clear consensus, she found. Accordingly, she concluded that it could not be said that the proposal had the backing of the affected local community. She considered, in any event, that the turbines would appear highly prominent upon a ridge and would be intrusive in the rural landscape. Notwithstanding the effect on the rural landscape, it seems highly unlikely that a domestic turbine would ever get the unanimous support of neighbours. Therefore, the WMS aimed at wind farms appears to be, perhaps unintentionally, putting the brakes on the generation of renewable energy from domestic turbines.

Perhaps the current minister would be so kind as to clear this matter up?

Wind farms are discussed at section 26.511 of DCP Online and householder microgeneration equipment at section 12.7.