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Join the dots

Obscure glazing is not generally considered a suitable method of mitigating unacceptable levels of privacy in habitable rooms due to the impact on outlook. An alternative method, described in an appeal against the refusal of planning permission for nine houses in north London (DCS Number 200-008-048) might be worth a look on a constrained site.

In this case it was proposed to construct two rows of terraced dwellings some 6m apart with “fritted” glass in the upper floor windows. The inspector explained that “Fritted glass is a proprietary approach which includes a pattern of small circles baked in ceramic on the inside of the glass pane across the whole of the pane. The circles would be 2 mm diameter set in a 2.5 mm grid. These would be black in colour on the inside and, in this case, white on the outside. The technology is designed so that light can pass through the gaps between the circles providing sufficient light within the rooms in question and allowing a view out as the eye filters out the dark and thus recessive circles. However, when viewed externally, the theory is that the eye rests on the reflection of the lighter colour reducing vision through the glass into the room behind, so as to prevent unacceptable levels of overlooking. When compared with “normal” methods of preventing overlooking, such as obscure glazing, the approach is designed to provide higher quality living conditions within the building as the occupants are able to see out.”

The inspector found that the performance of the fritted glass depended on the distance from the window, lighting levels, both internally and externally, and the angle of view: “The closer the viewer is to the window the easier it is to see through into the room behind. When viewed along the length of the windows at an oblique angle the dots apparently joined together to make an effectively continuous translucent covering. However, when viewed straight on it was possible to see through the gaps between the dots to some degree. The degree then depended on the light levels, with the greater the level of light internally the easier it was to see detail within the room.” Overall, he concluded that when viewed straight on more detail could be seen than was normally possible when using obscure glazing.

In the case before him the inspector found that the close face-to-face distance of the two opposite facades would result in unacceptable levels of overlooking. Nevertheless, it might be a solution elsewhere?

The issues of overlooking and privacy are discussed at section 4.136 of DCP Online.

Upstanding principles

An inspector dealing with an appeal against the refusal of a lawful development certificate for a dormer extension at a house in east London has ruled that firewall upstands are not part of the roof (DCS Number 400-020-327).

As with virtually all London terraced properties, the inspector observed, the walls between each dwelling projected beyond the roofline in order to form a fire break. He agreed with a colleague’s reasoning in a similar appeal in 2009 (DCS Number 100-064-232), deciding that the two side walls amounted to part of the framework of the building to which the roof was attached, and were not part of the roof. Consequently, he determined, an extension which built on top of those side walls would amount to an upward extension of the dwelling itself and not just an alteration or extension to the roof. In which case, he found that the council was correct to consider the dormer extension under Class A, of Part 1, Schedule 2 to the GPDO.

The inspector concluded overall that the development would contravene the requirements of Class A and would not amount to permitted development.

Section 12.413 of DCP Online concerns dormer and roof extensions.

Caught by a catch-all

In an appeal against an enforcement notice directed at the residential use of a stable block in County Durham (DCS Number 400-020-325) an inspector found no difficulty in identifying the meaning of ‘residential paraphernalia’.

The appellant argued that the requirement to remove residential paraphernalia, fixtures and fittings, within the building was excessive and also that residential paraphernalia was insufficiently defined. However, the inspector noted that paraphernalia is defined in the Oxford dictionary as “miscellaneous articles, especially the equipment needed for a particular activity”. He was not persuaded that there should be any difficulty identifying miscellaneous articles or fixtures and fittings relating to the residential use of the building and land. He considered the term to be sufficiently precise and not readily open to misinterpretation.

Nonetheless, retrospective permission was granted subject to a unilateral undertaking to remove all items of domestic paraphernalia, including washing lines, children’s play equipment and garden structures and furniture, from specified parts of the site, and thereafter keeping these areas clear of such paraphernalia.

Further appeal examples concerning domestic paraphernalia at residential conversions can be found at section 10.1354 of DCP Online.

Upwardly mobile homes

A proposal for 16 residential park homes on the edge of a village in Oxfordshire was dismissed at appeal in the absence of affordable housing provision, despite the appellant’s argument that the homes would themselves be affordable (DCS Number 400-020-174).

Development plan policy set out that 40 per cent affordable housing would be sought on all sites where there was a net gain of three or more dwellings, the inspector recorded. The appellant argued that because the proposal related to the change of use of the land for the siting of mobile homes and not operational development, that no affordable housing provision was necessary. The inspector, however, judged that the new park homes would for all intents and purposes be new homes. They would be self-contained units of accommodation and would be likely to provide living accommodation and facilities similar to a dwelling with space to cook, wash, sleep and relax. Accordingly, she held that the development plan policies relating to the provision of affordable housing were as relevant as they would be in cases of traditionally constructed dwellings.

The inspector did not doubt that park homes are likely to be cheaper to purchase or rent than traditional dwellings. She accepted that the provision of such homes on the site would therefore be likely to be attractive to certain members of the local community, as recognised in the Mobile (Park) Homes – Briefing Paper, House of Commons Library, to which the appellant had referred her. Nevertheless, there was no mechanism before her to ensure that the park homes would fall within any of the categories of affordable housing set out within the Framework and would remain so in the future. There was therefore no certainty that the development would provide an affordable route to those whose needs were not met by the market, whether that be affordable housing for rent, starter homes, discounted market sales housing, or other affordable routes to home ownership.

The inspector concluded that the park homes would not meet the planning definition of affordable housing, and the absence of affordable housing provision on the site would conflict with the aims of development plan policy which sought to provide homes to address the needs of different groups in the community.

Section 7.3 of DCP Online deals with the topic of affordable housing.

To the nines

In deciding that the residential conversion of a barn in Cornwall under permitted development rights was ruled out by a condition attached to the planning permission for the building (DCS Number 400-020-154) an inspector has made reference to the nine principles for conditions set out in Dunnett.

The condition stated that “The development hereby permitted shall be used for agricultural storage or livestock purposes only and for no other purpose”. The reason for the condition was to enable the local planning authority to retain control over other uses that would not be appropriate in the isolated, rural location. Referring to case law set out in Dunnett Investments Ltd v SSCLG & East Dorset DC [2016] & [2017], the inspector considered that what was important was that there was something more in the condition than merely re-stating the terms of the permission in the description of development. He ruled that the words “for no other purpose” performed this task, moving the condition beyond simply defining the ambit of the permission.

The inspector recorded that nine principles for planning conditions were set out in Dunnett. “In summary, conditions should be construed in the context of the permission as a whole; in a common sense way; and not too narrowly or strictly. There is no reason to exclude an implied permission, but it must be remembered that a planning permission is a public document which may be relied upon by parties unrelated to those originally involved. A relatively cautious approach is required given the prospect for criminal proceedings; conditions must be construed objectively and not by what the parties may or may not have intended at the time; they must be clearly and expressly imposed; and construed in conjunction with the reasons for their imposition. Finally, the process of interpreting a condition does not differ materially from that appropriate to other legal documents.”

Applying these principles, particularly that the permission was a public document that might be relied upon by parties unrelated to those originally involved and that conditions should be construed in accordance with their reasons, led the inspector to conclude that the purpose of the condition was clearly one to restrict uses other than agricultural ones and went beyond simply defining the ambit of the permission. There was no need to read any words into or out of the condition and its reason in order to understand this, he held.

The inspector concluded that the condition had the effect of removing permitted development rights.

Section 4.4261 of DCP Online concerns the curtailment of the later exercise of planning rights.

Null and void

An enforcement notice aimed at the residential use of land in Worcestershire has been declared a nullity by an inspector for the not uncommon reason of failing to specify a compliance period (DCS Number 400-020-206).

The inspector explained:

“The notice the subject of this appeal contains errors that renders it a nullity. Section 173 of the 1990 Act and Regulation 4 of the Town and Country Planning (Enforcement Notices and Appeals) (England) 2002 stipulate the matters to be specified in enforcement notices. One of these (Section 173(9) of the 1990 Act) is that the notice shall specify the period at the end of which any steps are required to have been taken or any activities are required to have ceased. The period for compliance must be separate from the 28 day period. A notice which contains no period whatever for compliance is a nullity, and the case of R (oao Lynes) v W Berkshire DC [2002] EWHC 1828 found that a notice which specified “immediately” as the period for compliance fell into that category since that is not a “period” for the purposes of s173(9).”

The inspector recorded that in the case before him, rather than specifying a period for compliance with the requirements of the notice, compliance was required “as soon as the Enforcement Notice takes effect”, which, by reference to the case law could not be interpreted as an actual period of time. He further explained that failure to specify a period for compliance rendered the notice a nullity, and an enforcement notice that is a nullity is without legal effect and cannot be corrected or amended, or even quashed.

Accordingly, the appeal and the deemed application did not fall to be considered.

Remember this one.

Further explanation concerning period for compliance requirements can be found at section 4.5361 of DCP Online.

Local knowledge

An appellant seeking to establish that the unfettered residential occupancy of a barn conversion in the Lake District would be lawful was disappointed when an inspector decided that the term ‘locality’ in a restrictive condition was precise and enforceable (DCS Number 400-020-182).

Planning permission for the conversion was subject to a condition that “The occupation of the dwelling shall be limited to a person solely or mainly employed or last employed in the locality, in agriculture as defined in Section 290(1) of the Town and Country Planning Act, 1971, or in forestry, (including any dependants of such a person residing with him) or a widow or widower of such person.”

Firstly, the inspector noted that it was common ground that, because of the comma after the word ‘locality’, the condition allowed occupancy by a person solely or mainly employed or last employed in the locality, whether that employment was in agriculture or forestry or for other purposes altogether. Secondly, the inspector discussed the meaning of ‘locality’, noting the appellant’s argument that the use of the word was so imprecise as to make the condition unenforceable. To this end he reviewed relevant case law.

In Fawcett Properties Limited v Buckingham County Council (1960), the judge held that “a planning condition is only void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results.” The use of the word ‘locally’ in an occupancy condition was considered in the case of Alderson v SSE and Another (1984). In this case a judge said that “… the word “locally” has a perfectly intelligible meaning, although some doubtful cases might arise. If a doubtful case arises then it will be for the Court to say whether or not planning permission has been broken.” In the same case, another of the judges noted that the term “had been in wide use since the late 1960s at any rate, and so far as we are aware does not appear to have given rise to any difficulty.” The inspector held that the term ‘locally’ was not materially different in the present context from the words ‘in the locality’, which appeared in the condition in question and which appeared in Circular 24/73 and subsequent circulars up to Circular 11/95. In addition, the inspector recorded that in a large number of extracts from appeal decisions submitted by the council, it appeared that there had been little difficulty in interpreting ‘locality’ in the context of occupancy conditions and the facts of individual cases.

Similarly, the inspector saw no such difficulty in the present case. There was no requirement for the occupier to be employed on the appeal site, he ruled. He or she could be employed some distance away but not so far away as to invalidate one of the purposes of the condition, which was to preserve a stock of dwellings for the use of the local population. He regarded this as sufficiently precise and enforceable to comply with the relevant tests for conditions both at the time the condition was imposed and at the present time.

There is further information concerning local occupancy conditions at sections 10.3411 and 9.1411 of DCP Online.

Block paving blocks parking

In deciding an appeal against a south London council’s refusal to grant a certificate of lawfulness for a vehicle crossover (DCS Number 400-020-168), an inspector has distinguished between ‘porous’ and ‘permeable’ hard surfacing.

The council considered that the vehicular crossover would not fall within development permitted under Schedule 2, Part 2, Class B of the GPDO, the inspector recorded. She explained that this permits the construction of a new means of access to a highway, which is not a trunk road or a classified road, provided that access is required in connection with other permitted development. In the case before her the vehicular crossover was proposed in connection with the paved front garden, which would be used as a car parking space. The inspector further explained that the creation of a hard surface incidental to the enjoyment of a dwellinghouse is permitted development under Schedule 2, Part 1, Class F of the GPDO, subject to certain conditions and limitations. Development is permitted providing condition F.2 is satisfied which requires that where the hard surface is at the front of the property, and the area covered by the hard surface would exceed five square metres, either the hard surface is made of porous materials or provision is made for water run-off within the curtilage of the dwellinghouse. She identified the dispute between the parties as concerning whether or not the existing hard surface in the front garden was porous.

The inspector reasoned that the block paving of the front garden would be porous if the blocks themselves allowed water to pass through. On the other hand, it would be permeable if there were open voids across the surface of the block paving to allow water through to the underlying substrate. She noted that there was no information before her regarding the nature of the blocks and whether or not they were constructed from porous materials. In terms of permeability, the paving had been partly pointed, which she considered was likely to have the effect of infilling the voids and restricting permeability.

The inspector concluded that it had not been shown that the hard surface would be permitted development as condition F.2 had not been satisfied. As a result, it had not been shown that the vehicular crossover would be required in connection with other permitted development, the car parking space provided by the hardstanding. A certificate of lawfulness was denied.

Further practice examples relating to Part 2, Class B of the GPDO can be found at section 4.3422 of DCP Online, and Part 1, Class F at section 4.3421.

Fire away

In a previous blog, Flame test, we reported an appeal case in which an inspector was not satisfied that a sprinkler system would provide adequate mitigation against fire safety risk at a site for four flats which would be inaccessible to fire appliances. In another appeal concerning the erection of one dwelling in Greater Manchester, on the other hand, an inspector decided that sprinklers would overcome the problem.

In this case, (DCS Number 400-020-145), the inspector noted that at its narrowest point, the short access was 2.39 metres in width, below the minimum width of 2.75 metres that was required for a fire engine to access the site. He noted, however, that Manual for Streets (2007) advises that “residential sprinkler systems are highly regarded by the FRS and their presence allows a longer response time to be used. A site layout which has been rejected on the grounds of accessibility for fire appliances may become acceptable if its buildings are equipped with these systems”. Given that the proposal was for a single dwelling only, he considered that this measure would provide appropriate mitigation to any fire risk.

The principal differences between the two cases are the number of residential units and the length of the access. But, if a fire engine can’t get to the fire the difference in the length of the access is immaterial, isn’t it?

Section 4.1542 of DCP Online concerns fire prevention.

Waking the dead

At the spookiest time of the year we found this in an appeal against the refusal of planning permission for the residential conversion of a church in the Scottish Highlands (DCS Number 400-019-958):

“I am satisfied that during the construction phase, there will be minimal disruption or disturbance to those buried in the graveyard….”

Section 10.3 of DCP Online covers institutional building conversion.