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Housing land supply – you’re on your own

An inspector has allowed 30 houses outside a village in Cambridgeshire despite the council having an agreement with a neighbouring authority in respect of housing land supply (DCS Number 400-011-553).

Whilst acknowledging that it could not deliver a five-year supply of housing land, the council indicated that if looked at in the wider area, a five-year housing land supply could be shown, and pointed to a memorandum of understanding between the two councils. The inspector confirmed, however, that paragraph 47 of the NPPF is directed to each local planning authority, and it was not a case where a joint local plan had been submitted for consideration. Therefore, there was a requirement that each local planning authority individually needed to show a five-year supply of housing land.

Just to be clear.

The following DCP chapter is relevant: 7.131

Obesity and the origins of planning

Retrospective permission for a pizza and kebab takeaway in Gateshead was rejected, an inspector supporting the council’s endeavours to address obesity in its area (DCS Number 400-011-493).

The inspector noted that paragraph 7 of the NPPF explains the need for the planning system to support strong, vibrant and healthy communities by creating a high quality built environment that reflects the community’s needs and supports its health, social and cultural wellbeing. Paragraph 69 reiterates that the planning system can play an important role in creating healthy, inclusive communities. In line with this objective, a core strategy policy stated that the wellbeing and health of communities would be maintained and improved by controlling the location of, and access to, unhealthy eating outlets.

In a footnote the inspector acknowledged that the appellant was critical of this policy, arguing that it was outside the ambit of valid planning considerations. He pointed out, however, that  an important precursor to the first town planning Act in this country (the Housing, Town Planning, etc. Act 1909) was the Public Health Act of 1875. So, the planning and environment legislation that exists today has its origins in 19th century concerns about the health and wellbeing of the people.

A survey undertaken in 2012 found that 61 per cent of people in Gateshead were either overweight or obese, the inspector noted, and, according to the National Child Measurement Programme the prevalence of childhood obesity for 10 and 11 year olds in Gateshead was above the national average.

Recognising that the council was seeking to improve the wellbeing and health of residents by ensuring that new sources of unhealthy eating were carefully controlled, the establishment of the takeaway would run counter to those aims and the specific provisions of an adopted local policy, the inspector concluded.

This case reminds us of the political nature of planning and as always there is a difference of opinion. On the one hand there are those who object to government interference and on the other there are those who consider that the regulation of threats to our wellbeing is one of the functions of government. The inspector’s placing of this appeal case in an historical context provides a very useful perspective. He’s right, of course.

The following DCP chapter is relevant: 16.2321

Don’t try this at home

An inspector has upheld an enforcement notice requiring the demolition of an outbuilding used as three flats at a property in west London, determining that a lawful development certificate for the development was not genuine (DCS Number 200-004-993).

The story begins in 2012 when the council granted a LDC for a single storey detached garden outbuilding for use as a gym/games room/storage area. The appellant explained that he was later handed the decision notice that purported to grant planning permission for the use of the outbuilding as three self-contained flats by a contractor who claimed that he knew someone at the council who could obtain planning permission for that use. The appellant was not able to provide a date on which he was handed the decision notice, although he said that he did seek to verify the validity of the notice by reference to the council’s website, and provided a screenshot of the website showing the purported decision for use of the outbuilding as three flats.

The council explained that on 17 January 2014 a number of unauthorised changes were made to the records relating to the LDC for the gym. These changes were the subject of an investigation undertaken by the council in relation to a number of similar unauthorised changes to the planning records alleged to be made or potentially made by a former council employee. The council gave evidence to the inquiry to confirm that the investigation had concluded, and that there was sufficient reliable evidence to show that the purported decision notices were fraudulent. The inspector reasoned that the appellant could only have been handed the decision notice after 17 January 2014 which in turn cast doubt on the appellant’s recollection that he relied upon the information on the council’s website in deciding to construct the outbuilding. In addition, aerial photographs provided by the council showed the site in July 2013, at which time the outbuilding appeared to be either complete or nearing completion. Furthermore, unlike the application that resulted in the LDC being granted for the outbuilding for use as a gym/games room/storage area, there was no documentary record of an application for the use of the outbuilding as three self-contained flats. Similarly, there was no record of such an application appearing on the council’s weekly list. The inspector therefore did not accept the appellant’s claim that he was misled by the information of the council’s website, which could only have appeared after January 2014. He upheld the enforcement notice, requiring the demolition of the outbuilding in its entirety.

This is NOT the way to beat the system.

The following DCP chapter is relevant: 6.33

Cemetery firm digs itself out of a hole

A cemetery company in Kent has succeeded in gaining a lawful development certificate confirming that foundation trenches have implemented a planning permission for a chapel and maintenance building, despite their being dug in the wrong place (DCS Number 400-011-499).

Permission had been granted in 2010 and the appellants sought to keep the permission alive by digging trenches for the maintenance building. The inspector recorded that, unfortunately, the trenches were not dug in precisely the right position and, whilst there was some overlap between the foundations as they should have been dug and the foundations as in fact they were dug, this was relatively slight. This prompted the council to claim that the extent of trench that could be argued to represent a start to the 2010 permission was so slight as to be de minimis and therefore failed to constitute a material operation.

The inspector noted that it was the appellants who brought the error to the council’s attention. He asked himself whether, if the building had been completed for more than four years but had been subject to conditions which the council then wished to enforce, could the appellant have argued that this was not the building for which permission had been granted? Bearing in mind that there was an overlap between the intended site of the building, and the actual position, and that the size and shape of the building was the same, it seemed unlikely.

Moreover, the inspector considered it unlikely that the conclusion would be reached that what had been done was materially different from that which was permitted. In addition, he noted that Section 56(2) of the Act indicates that development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out. Section 56(4) indicates that “material operation” means, amongst other things, the digging of a trench which is to contain the foundations, or part of the foundations, of a building.

The inspector issued a lawful development certificate confirming that works had been carried out to begin the development. Whilst the company has dug itself out of this hole it is to be hoped that its grave-digging skills are more accurate.

The following DCP chapter is relevant: 6.341

“What is this life if, full of care,

We have no time to stand and stare?”

The well-read readers of this Blog will recognise these lines from ‘Leisure’ by W H Davies. An inspector deciding an appeal relating to a wakeboarding facility in Cambridgeshire seems to have a different understanding of the term ‘leisure’, however, (DCS Number 200-004-995). There was much discussion at the hearing regarding the issue of need for the development, the inspector recorded. This arose from Paragraph 28 of the NPPF which supports: rural leisure developments that benefit businesses, communities and visitors and respect the countryside; and the provision of tourist and visitor facilities where identified needs are not met by existing facilities in rural service centres. Accordingly, the question then arose as to whether the development would constitute a ‘leisure development’ or ‘visitor facility’.

The inspector took the view that the word leisure embodies the idea of enjoyment and physical activity, for example, a leisure centre. The Oxford dictionary, he noted, defines a ‘visitor’ as someone who is visiting a place or person. He thought that it does not invoke the same sense of physical activity as leisure. He was therefore satisfied that for the purposes of Paragraph 28 of the NPPF, the proposal would constitute a leisure development. It followed that there was no requirement to demonstrate either a need or demand for the development.

Leisure doesn’t involve standing and staring, then.

The following DCP chapter is relevant: 18.3

Shakespeare 400

As we all know, 2016 marks the 400-year anniversary of the death of William Shakespeare. Ever topical, the DCP Blog is delighted to be able to report an appeal decision in which The Bard gets a mention (DCS Number 400-011-383). This case concerns the residential conversion and extension of a listed timber-framed barn in Stratford-upon-Avon. The property was originally a house, reputed to have been owned by Richard Shakespeare, and possibly the birthplace of William Shakespeare’s father and uncle. The appeal proposal involved adding a large, two-storey extension that would increase the volume of the barn by over 80 per cent. The inspector judged that an extension of such a size would be out of keeping with the existing size and scale of the listed barn and dominate its appearance to an unreasonable extent. He considered that the barn was a significant local heritage asset not only because of its considerable age and traditional appearance but also as a result of its possible historical associations with William Shakespeare’s family. The public benefits of the scheme, which included the repair of the deteriorating barn, were outweighed by the harm, he concluded.

Assuming there is a degree of substance to the reputed association with the Shakespeare family, this really isn’t the year to be contemplating a bit of an extension to the birthplace of Shakespeare’s dad.

The following DCP chapter is relevant: 27.3

Beds in sheds – removal of bathroom facilities

Planning authorities’ preference to see bathrooms and kitchens removed from unauthorised dwellings is easily understood; without these facilities it is unlikely that occupation will continue. However, an inspector dealing with an appeal against an enforcement notice directed at the unauthorised use of an outbuilding in the garden of a house in Oxford as a separate dwelling has deleted the requirement to remove its bathroom facilities as it would exceed what was necessary to remedy the breach of planning control (DCS Number 400-011-382).

The inspector pointed out that bathroom facilities are not uncommon features in ancillary or incidental outbuildings and there was nothing to doubt the appellant’s contention that the bathroom facilities were provided long before the more recent unauthorised change of use to use as a single dwellinghouse. The bathroom facilities would be lawful if the building remained in use for purposes ancillary or incidental to the main dwelling.

The inspector recorded that case law establishes that where a notice is issued alleging a material change of use, and the notice requires that certain works be removed, those works must have been integral to or part and parcel of the making of the material change of use.

He determined that the council’s concern about a future resumption of the breach did not provide a legitimate reason for requiring the removal of the bathroom facilities since Section 181 of the Act states that compliance with an enforcement notice shall not discharge the notice. The council could therefore take immediate enforcement action to prosecute the notice if the unauthorised use were to later resume.

It strikes us that this is one of those situations where effective enforcement relies on the monitoring of human behaviour rather than the recording of physical works (not unlike the situation in Outside play at nursery – whether condition enforceable); a difficult, if not impossible task. Given that ineffective enforcement is one of the best ways to undermine public confidence in the planning system there must be a better way. Sorry to say it, but maybe this needs amended legislation.    

The following DCP chapter is relevant: 10.2

First floor in barn conversion is within scope of Class Q

The following appeal decision provides some welcome clarity in the uncertain world of prior approval applications.

In determining an appeal against the refusal of a prior approval application for a barn conversion in Herefordshire (DCS Number 200-004-967) an inspector decided that the creation of a first floor did not put it beyond the scope of Class Q of the GPDO.

The inspector recorded that S.55(2)(a) of the 1990 Act establishes that “the maintenance, improvement or other alteration of any building of works which (i) affect only the interior of the building, or (ii) do not materially affect the external appearance of the building” does not constitute development. Accordingly, the internal works proposed, which would enable a first floor to be provided, would not fall within the definition of development by virtue of S.55(2)(a). He noted that they would not affect the existing structure so as to make it sound or otherwise enhance its structural integrity; it was already a sound structure and the internal elements proposed would not be additions to its structural integrity as such. He reasoned that for Class Q to seek to control such internal works, which are permitted elsewhere or do not constitute development in themselves, would be illogical. The internal works were permitted development, he decided.

The following DCP chapter is relevant: 4.3423

Prior approval – again

We recognise that we might be going on a bit about the shortcomings of the prior approval regime……but we’re not stopping. Here is another daft outcome.

A planning authority in Yorkshire refused prior approval for a householder extension on the basis that development had already commenced and therefore could not benefit from the prior approval process (DCS Number 400-011-347). At appeal, an inspector recognised that there is no provision in the GPDO for a retrospective application for prior approval. The appellant stated, however, that the existing extension would be demolished. On that basis the inspector decided that the application related to a proposal for a new development and allowed the appeal.

Firstly, in the real world, is the appellant really going to demolish the extension only to rebuild it? Secondly, is this what the planning system ought to be seeking to achieve, anyway?

The following DCP chapter is relevant: 4.3421

A note on prior approval for office to residential conversions

In determining an appeal against the refusal of prior approval for the change of use of the upper two floors over a shop unit in a Surrey town centre from office use to four flats an inspector examined the question of whether the need for external works to implement the change of use disqualified the proposal as permitted development under Class O of Part 3 (DCS Number 400-011-323).

The existing access to the upper floors was through the shop. The proposal included a new side door to the existing stairs to the upper floors. At first floor level an existing external fire door to a flat roof would be blocked off and at second floor level the external alterations would include two new rooflights for the bedrooms and one new bedroom window. The council’s decision notice stated that prior approval was refused because Part 3 Class O of the GPDO does not make provision for alterations or extensions to buildings and because the external ground and first floor alterations specified on the submitted drawings would require planning permission.

The inspector agreed that if the submitted plan includes any building operations then they cannot be approved under the prior approval process for Class O since Class O does not cover such operations. He reasoned, however, that this should not prevent consideration of the principle of the change of use under Class O. It would remain open to the successful applicant for prior approval to make a separate application for planning permission for any external alterations that were necessary to implement the change of use.

So, in order to gain approval for office to residential conversion where building operations are involved it is necessary to apply for both prior approval and planning permission. Has this really made the planning system simpler?

The following DCP chapter is relevant: 4.3423