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Pooling restriction not applicable to prior approval scheme

The conversion of two barns in Surrey to three houses under the prior approval procedure succeeded at appeal after an inspector ruled that the Section 106 pooling restriction did not apply (DCS Number 400-013-505).

The site was within 5km of the Thames Basin Heaths Special Protection Area (SPA), designated because of its importance in providing a habitat for three species of bird subject to European protection. The inspector recorded that the council had adopted an Avoidance Strategy which provided a mechanism for developers to mitigate the effect of new residential development within 5km of the SPA by providing or contributing to Suitable Alternative Natural Greenspace (SANG). As the appellant had submitted a unilateral undertaking which would make the contribution sought by the Avoidance Strategy the inspector was satisfied that adverse effects on the SPA would be adequately mitigated. He noted that Regulation 123 of the Community Infrastructure Levy (CIL) Regulations 2010 places restrictions on the use of obligations when granting planning permission. He reasoned, however, that in the case before him permission was granted under the GPDO, and since it was not an application for planning permission it was not covered by the pooling restriction contained in the CIL Regulations. He concluded that the obligation was necessary and otherwise satisfied the tests set out in the National Planning Policy Framework and the CIL Regulations.

What the DCP Blog would like to know is what difference does the nature of the legislation under which residential development is granted make to the nightjar, Dartford warbler and woodlark. Does this highlight yet another discrepancy between the planning permission and prior approval legislation or can readers make sense of this?

The following DCP section is relevant: 4.169

Intentional unauthorised development

Whilst agreeing with the national park authority that a barn on Exmoor was intentional unauthorised development, an inspector judged that this fact was not, on its own, sufficient to dismiss the appeal against enforcement (DCS Number 400-013-494).

Planning permission had been granted for the erection of an agricultural building but the building which had been constructed was longer, wider and higher than that permitted. The inspector found that although materially larger than the approved building and of a utilitarian design, its appearance was such that it would be read as a typical agricultural building on an existing farm complex in a rural setting. She accepted that views were an essential part of the enjoyment of the national park but did not find the additional landscape impact to be so significant that it harmed the natural beauty and scenic quality of the park. Addressing concerns about drainage, the appellant having built over the location allocated for a soakaway, the inspector found that the site could be satisfactorily drained subject to the imposition of a condition.

Turning to the matter of intentional unauthorised development, the inspector recorded that on 31 August 2015, the Department for Communities and Local Government published a planning policy statement on green belt protection and intentional unauthorised development. She explained that the policy came into force on that date and made intentional unauthorised development a material consideration to be weighed in the determination of planning applications and appeals. Although the appeal before her did not relate to green belt, she noted that the policy applies to all new planning applications and appeals received from 31 August 2015. The government is particularly concerned, she noted, about harm that is caused where the development of land has been undertaken in advance of planning permission being granted.

The national park authority contended that the appellant had intentionally flouted the development control process and carried out the development despite being advised not to do so. Correspondence between the NPA and the appellant confirmed to the inspector that this was the case. She also accepted that the NPA had had to take enforcement action which had been time consuming and expensive. Accordingly, she concluded that the development was intentional unauthorised development, and that this was a material consideration weighing against the grant of planning permission. Nevertheless, she did not consider that the matter of intentional unauthorised development carried such significant weight that the appeal ought to be dismissed and the enforcement notice upheld on this basis alone given the acceptability of the scheme in all other respects.

This tells us, it seems, that having a somewhat casual approach to the reading of approved drawings will not in itself carry significant weight in the planning balance, irritating though that might be. It might just tip the scales, though, where there are other matters weighing against the development. As readers will be aware, this marks a change from the situation previously: whilst Section 73A of the Act still allows applications for planning permission for development that has already taken place and the retrospective validation of a contravention of planning control, there is now a sanction in place. As the 31 August 2015 letter from the Chief Planner recorded, in cases where the development of land has been undertaken in advance of obtaining planning permission there is no opportunity to appropriately limit or mitigate the harm that has already taken place, and such cases can involve local planning authorities having to take expensive and time consuming enforcement action.

The following DCP section is relevant: 4.5

See you in court

A council in Hertfordshire has threatened a legal challenge to Planning Policy Guidance in respect of barn conversions under the GPDO (DCS Number 400-013-437).

The basis of the council’s refusal of prior approval for the residential conversion of the barn was that it would result in a dwelling in an isolated location. An appeal inspector pointed out, however, that Planning Practice Guidance (PPG) confirms, in relation to the Class Q permitted development rights, that

‘…When considering whether it is appropriate for the change of use to take place in a particular location, a local planning authority should start from the premise that the permitted development right grants planning permission, subject to the prior approval requirements. That an agricultural building is in a location where the local planning authority would not normally grant planning permission for a new dwelling is not a sufficient reason for refusing prior approval…’

The council referred to paragraph W.10 of Part 3 of the GPDO, which required it, when determining an application under Class Q, to have regard to the National Planning Policy Framework as if the application were a planning application. The council argued that the government did not ‘clarify’ the terms of the GPDO when it was amended in April 2015, the inspector recorded. He took the view, however, that the PPG provides adequately clear advice concerning the correct approach to apply. He acknowledged that the interpretation of the GPDO is a matter for the courts and that the council had stated that it intended to challenge the approach set out in the PPG, but he reasoned that there was no case law in place which indicated that the approach in the PPG should not be followed.

Costs were awarded to the appellant.

Watch this space.

The following DCP section is relevant: 4.3423

Back to the future

Just as we were thinking that telegraph poles were all but redundant along comes an inspector allowing a high tech version.

In (DCS Number 400-013-384) a consortium of telecommunications operators proposed a 10 metre high replica telegraph pole in southeast London. The inspector was aware that there had been a previous application for a 12.5 metre high monopole on the site. He observed that that scheme would have been significantly more prominent due to its greater height and the bulbous nature of the antenna shroud. In re-designing the proposal to a single diameter replica telegraph pole of lesser height he considered that the appellant had shown a readiness to compromise, notwithstanding the fact that the 10-metre scheme would be on the margins of acceptability in terms of the network coverage it would provide.

The inspector acknowledged that the timber-effect monopole would be taller and wider than the telegraph poles it was designed to replicate. Whilst this would give it greater presence, he considered that the general appearance would be similar. The monopole would of necessity rise above adjacent street lights and trees, but the difference in height would not be significant, he judged, and the structure would not be obtrusive or unduly prominent. He concluded that the monopole would be read in the context of other vertical elements of street furniture and would be assimilated into the street scene without creating a sense of clutter.

The Blog is predicting the launch of the Bakelite iphone very soon.

The following DCP section is relevant: 28.1

A genuine offer?

An appeal concerning the removal of an agricultural occupancy condition from a farm bungalow in Kent (DCS Number 200-005-719) has articulated a nagging doubt held here on the DCP Blog about a certain aspect of planning practice.

The retired farmer claimed that following the loss of rented land, changes in farming practices and the flooding of fields adjacent to a river, there was no longer any cause for the occupation of the property to be restricted to a farm worker. Moreover, he wished, in due course, to have the option of passing on his home to his non-farming family who would not comply with the occupancy condition.

The appellant accepted that he had not marketed the bungalow. He did not wish to move and felt that to undertake such an exercise would be to do so under false pretences. The inspector, however, determined that in the absence of such a ‘market-testing’ process it was impossible for her to assess whether or not there was a demand for an agricultural worker’s property of the size and likely value in the area. Consequently, she decided that it would be premature to remove the occupancy restriction.

Another example of market testing being required in order to prove lack of demand is where the removal of a holiday letting condition is proposed. Where holiday occupancy of a property has been low its owners might decide that it is no longer viable to keep cleaning, maintenance and letting services in place, and would therefore not be in a position to accept bookings. Nevertheless, they are required to advertise the property for holiday use. Readers will no doubt be able to think of other examples.

Should the planning system be insisting on the marketing of property under what might be, as the old farmer articulated, false pretences? What do readers think?

The following DCP section is relevant: 9.334

Permitted development rights apply to HMOs

There is sometimes a degree of uncertainty concerning the application of permitted development rights to houses in multiple occupation. Here is an inspector setting the record straight (DCS Number 400-013-332):

“The appeal property is a mid terrace building currently in use as a small House in Multiple Occupation (HMO) for up to 6 people (Class C4). The proposal seeks approval for a single storey rear extension with a flat roof to 6 metres (m) from the original rear wall of the house. The GPDO allows for such extensions to terraced dwellinghouses. However, it is the Council’s assertion that given the current use of the appeal property as a small HMO, it does not benefit from such permitted development rights under the provisions of the GPDO.

Nevertheless, it is my understanding that HMOs, including those which fall within Class C4, can benefit from the permitted development rights granted to dwellinghouses by the GPDO. The test for whether a property is eligible to use the permitted development right is whether it can be considered a dwellinghouse within the context of the GPDO. On this matter, case law has established that the distinctive characteristic of a dwellinghouse is its ability to afford to those who use it the facilities required for a day-to-day private domestic existence.”

Having found that the property afforded the people who used it the facilities required for a day-to-day private domestic existence the inspector concluded that it would benefit from the permitted development rights granted to dwellinghouses by the GPDO.

The following DCP section is relevant: 11.2


Readers dealing with enforcement matters will know that it is a matter of judgement for a local authority as to whether or not it is expedient to take enforcement action against a breach of planning legislation; the funds to pursue such action are, of course, drawn from the public purse.

Accordingly, such readers might find useful the following neat summary of the law on expediency, found in a recent appeal decision (DCS Number 400-013-325):

“The starting point in this regard is section 172(1)(b) of the 1990 Act as amended, which specifies that a notice may be issued when it appears to the local planning authority that it is expedient to do so, having regard to the provisions of the development plan and any other material considerations.……

Firstly, the Appellant’s argument in this regard is based solely on the notion that he should have been given the opportunity to make a planning application for some or all of the unauthorised works before enforcement action was pursued. However, even though this is often good practice it is not a statutory requirement and thus has no bearing on the legal standing of the enforcement notice.……

Secondly, the High Court found in R (Ardagh Glass Ltd) v Chester CC [2009] that, as a test, ‘expedient’ suggests the balancing of the advantages and disadvantages of a course of action, the basis for which should be the assessment of planning considerations. The phrase ‘where it appears to them’ in section 172(1) is a clear indication that whether to issue an enforcement notice on this basis is a matter for the local planning authority’s discretion..…..

In any event, in the case of Britannia Assets v SSCLG & Medway Council [2011] it was held that there was no jurisdiction for an Inspector to determine whether or not the local planning authority had complied with its obligation under section 172 in this regard. Any legal implications of whether it was ‘expedient’ for the authority to issue an enforcement notice are therefore matters to be dealt with by way of judicial review.”

The following DCP section is relevant: 4.5313

Replacement windows in historic buildings

Readers might wish to note the detailed consideration given by an inspector to an appeal against the refusal of listed building consent for the replacement of a bay window in a Dorset cottage.

To many owners of historic homes it might come as a surprise to find that “Before any decision is made about whether to repair or renew, it is essential that the condition of the joinery is fully understood. It usually necessary to carefully remove the frames so that a detailed examination can be made. It is then possible to prepare an accurate schedule of repair, by reference to each joint, each element of the joinery and each pane of glass.” The inspector goes on to explain in precise terms why the proposed insulated glass units (IGUs) would fail to preserve the special architectural and historic interest of the building (see (DCS Number 400-013-370)). In this regard she draws attention to useful advice on upgrading windows given by Historic England: Traditional Windows: Their Care, Repair and Upgrading, September 2014.

The inspector reports that the HE advice discusses the importance of the scientifically well-established concept of the “whole building approach” to energy conservation in historic buildings, which simply means looking at how the energy usage can be saved throughout the whole property, not just by one measure. It also sets out the evidence gained through research, which has shown how measures such as blinds, insulated curtains and shutters can be a cost effective way of achieving good levels of improvement to the thermal efficiency of older windows.

In the case before her the inspector decided that the limited public benefit in terms of the small reduction in carbon emissions when compared to other ways of improving the thermal performance of the replacement bay window would not justify the harm caused to the significance of the listed building by the visually discordant use of slim profile IGUs.

The following DCP section is relevant: 27.2321

Vertical Sky Component in practice

In Vertical Sky Component – an explanation the Blog explained how VSC is calculated. Just as an example, here it is in practice in a recent appeal decision relating to a flat block extension in east London (DCS Number 400-013-364)

“……BRE guidelines indicate that a window may be adversely affected if the VSC measured at the centre of the window is less than 27% and less than 0.8 times its former value. The resultant ratio for the second floor window of No 363A would be less than 27% and 0.66 times its former value. I consider that this loss of daylight would result in significant harm to the living conditions of occupiers of the second floor of No 363A.”

“……I conclude that the development would have a harmful effect on the living conditions of occupiers of … 363A … through … a harmful loss of daylight to the second floor window …”

The following DCP sections are relevant: 4.236 and 8.432

A nice cup of tea and a sit down

In quashing an enforcement notice aimed at the unauthorised change of use of a travel agency (Class A1 use) in central London to a mixed use comprising a retail shop and a café/restaurant an inspector recognised the leisure aspect of shopping trips (DCS Number 400-013-348).

Development plan policy indicated that existing A1 retail would be protected throughout the borough except where the council considered that the unit was not viable, and the appellant had provided no evidence to show that the continued use of the appeal premises for an A1 use was not viable. Nonetheless, the inspector found that the use offered the prospect of providing more jobs than an A1 use of the premises, and increasing average spend in the area. Therefore, it was consistent with the objectives in the National Planning Policy Framework in terms of supporting economic growth and competitive town centres that promote customer choice. He considered that, on balance, these considerations outweighed the fact that the use did not accord with the development plan. In this regard he noted a study by the University of Southampton concerning the leisure aspects of shopping trips. The study, “High Street Performance & Evolution”, was published in July 2014. In summary, it produced evidence to suggest that the leisure aspect of shopping trips, including places to eat, is a significant driver of footfall in high streets. The study also suggested that the leisure offer increases both time spent within the high street as well as the average spend.

Quite. Shopping all day is exhausting.

The following DCP chapter is relevant: 16.131