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A good day to bury bad news?

Governments of all complexions have long been guilty of publishing potentially unpopular information under cover of significant events so perhaps the DCS team ought not to have been surprised at the quantity of mahoosive decisions published by the secretary of state on the Friday before Christmas. However, if DCLG hoped we would be too busy dragging a Christmas tree through the snowy streets whilst tossing farthings to barefoot orphans to alert our clients to these significant cases it would be disappointed. Oh no. We reported them on the day. And just in case you, dear readers, were too busy dragging a Christmas tree etc etc we reported them again after Christmas. And just to make the point, DCLG, that these things do not go unnoticed, here they are again:

Published on 23/12/16:

Up to 380 dwellings allowed in Leeds (DCS Number 200-005-958)

Up to 370 dwellings allowed in Leeds (DCS Number 200-005-957)

Circa 150 dwellings allowed in Leeds (DCS Number 200-005-956)

60-65 dwelling dismissed in Stafford (DCS Number 200-005-960)

Solar farm dismissed in Lancashire (DCS Number 200-005-959)  

Published on 22/12/16:

Up to 200 dwellings dismissed in Gloucestershire (DCS Number 200-005-951)

In anticipation of any claim that the publication of this number of secretary of state decisions in a single week is entirely normal – no, it isn’t. We’ve got the figures.

The following DCP section is relevant: 3.15

Don’t panic

On realising that a decision notice has been sent out in error it might be tempting to fire off a corrected version in the hope that it will put things right. It won’t – as the council discovered in (DCS Number 400-013-894).

The Dorset council initially issued a decision notice granting planning permission for a new house. The council contended at appeal that this was issued in error. The council subsequently issued a second decision notice, dated the same date, refusing planning permission. It was on the basis of this notice that the appeal was lodged.

The inspector explained that Sections 97 to 100 of the Town and Country Planning Act 1990 set out the powers available to revoke or modify a planning permission. This includes the provision that, if it appears to the local planning authority that it is expedient to revoke or modify a planning permission, they may by order do so, to such an extent as they consider expedient. He recorded that this formal procedure did not appear to have been undertaken by the council in the case before him. He concluded that the initial decision notice remained valid and the second decision notice, despite being issued to rectify an administrative error, was not valid. Consequently, there was no power of an appeal against the second notice and he took no action on the appeal.

The following DCP section is relevant: 6.21

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