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Equality of arms

We know that residents who wish to oppose a development in their local area can find the prospect of presenting their case at a hearing or inquiry intimidating. An inspector dealing with a proposal for a mixed use scheme in Kent (DCS Number 200-004-624) has usefully explained the extent to which an inspector is able to assist unrepresented parties as follows:

“Interested parties who took part in the Hearing, none of whom were represented, mentioned concern in passing about ‘equality of arms’, given the number of witnesses fielded by the appellant, who was represented at the Hearing by Queen’s Counsel. I am mindful, in this regard, of Article 6 of the European Convention on Human Rights, which seeks to ensure that people have an equal opportunity to put their case. However, it is not uncommon for parties to come to events such as this with varying levels of representation. Whilst individuals often appear unrepresented, Rule 9(3) of The Town and Country Planning (Hearings Procedure) (England) Rules 2000 allows that a person who is entitled to appear may be represented by another person. This can be a solicitor or barrister. Whilst not a common occurrence, it is certainly not unusual. Being very aware of the duties imposed on me as the appointed Inspector, in particular the duty to ensure that the Hearing was conducted fairly and that all participants were afforded the opportunity to present their cases whilst observing the rules that govern the conduct of such events, I assisted those opposing the development to present their cases, so far as I was able within the scope of the powers afforded to me and within the constraints of my own impartiality, having regard to the need to run proceedings as efficiently and effectively as possible.”

As this gives chapter and verse it might be an idea to tuck it away somewhere safe.

The following DCP chapter is relevant: 5.34

Where there’s a will…..

Here is an inspector using a pragmatic approach to dealing with the limitations of the prior approval procedure.

An application was made under Schedule 2, Part 3, Class O of the GPDO for the change of use of a property in southwest London from office use to a dwellinghouse but was refused by the council on the grounds of its impact in relation to transport and highways (DCS Number 400-010-764). The council would have granted the proposal if there was a mechanism in place whereby the occupiers of the building would be prevented from obtaining a residents’ parking permit but in the absence of any such mechanism, it had refused the application due to the unacceptable impacts on parking. A residents’ parking scheme was in place and the council was concerned that additional eligibility for residents’ parking would be unacceptable due to the levels of demand exceeding supply in the area.

The inspector referred to the advice in the PPG which stated that a negatively worded condition which prevents the development proceeding until an obligation is entered into can be appropriate in exceptional circumstances and where it relates to one of the matters under consideration. Since the only obstacle which stood in the way of the development proceeding was the need for an obligation to prevent future occupiers applying for or being entitled to a residents’ permit he was satisfied that such a condition was appropriate in the circumstances of the case.

Readers will no doubt be able to think of analogous examples where such an approach could be usefully employed.

The following DCP chapter is relevant: 10.3135

As Eurovision approaches….

Readers may recall mention in this column of an allowed appeal on the edge of a Gloucestershire village involving the erection of three dwellings (DCS Number 400-010-244). In that case, the inspector ruled that the site was not isolated within the meaning of paragraph 55 of the NPPF. ‘Isolated’ should have the everyday meaning of ‘lonely or remote’, he determined. In an appeal involving the erection of a holiday cottage near the Yorkshire coast, however, the inspector has interpreted ‘isolated’ as meaning a location outside a settlement (DCS Number 400-010-745). Accordingly, he dismissed the appeal, notwithstanding that the cottage would be sited between two existing holiday cottages close to the appellant’s house and only a few hundred metres from the settlement limit for the town.

As Eurovision approaches ……there comes a time for making your mind up, for making your mind up, for making your mind up……

The following DCP chapter is relevant: 9.13

The topsy-turvy world of flat amalgamation

See if you can make sense of these two decisions, issued on the same day in the same London borough.

In (DCS Number 400-010-690) an inspector declined to issue a lawful development certificate for the amalgamation of two flats into one, agreeing with the council that it was a material change of use within the meaning of section 55 of the Act and was therefore development requiring planning permission. The inspector referred to Richmond upon Thames v SSETR [2001], which concerned an application for a LDC for the change of use of a property from seven flats to a single dwellinghouse. In that case, the High Court adopted the principle that “The extent to which a particular use fulfils a legitimate or recognised planning purpose is relevant in deciding whether a change from that use is a material change of use”. In the current case both sides had submitted counsel’s opinion, the appellants’ counsel noting that there would be no effect on the residential character of the area. The council nevertheless took the view that a reduction in the number of flats in the building from four to three would be material because it would involve the loss of a residential unit at a time when there was a pressing need to retain the existing housing stock in the borough. The inspector agreed that, in line with Richmond, the use of the property as four flats rather than three fulfilled a legitimate and recognised planning purpose of sufficient significance to make the proposed amalgamation a material change of use.

On the other hand…..

In (DCS Number 400-010-693) a lawful development certificate was issued for the amalgamation of three flats into one dwellinghouse, the inspector finding that it would not constitute a change in the character of the use of the building or the area. Again, the council took the view that any amalgamation which includes the loss of a unit will be development which requires planning permission, reflecting increasing housing targets and the impact that amalgamation was having upon the progress towards achieving these. The inspector, however, considered that this failed to take account of the principal test established through the courts, particularly in Panayi v SSE [1985], which is the effect on the character of the area. He concluded that the council’s approach flies in the face of court authority and suggests that general concerns about housing provision and the loss of small units, not even supported by an adopted local plan policy, should trump any material consideration of the impact on the character of a specific area. He was satisfied that the proposed use would not result in a material change in the character of property or the residential area and on this basis would not amount to a material change of use.

Beats us.

The following DCP chapter is relevant: 11.1112

Don’t forget Mothering Sunday!

A farm business in the Surrey green belt has succeeded in gaining permission for a barn to be used in association with lavender production on the holding, although it will not be able to realise its hopes of making soap (DCS Number 200-004-725).

Appeals against the refusal of planning permission for a partially completed barn on the site and an enforcement notice requiring its removal had been dismissed previously. That inspector had concluded that the production of soap was a manufacturing process but that the production of lavender oil was ancillary to the agricultural use of lavender growing, by reference to a decision in Millington v SSETR [1998]. He commented that whilst a relatively niche activity it was not dissimilar to the process required to produce wine, cider or apple juice and considered that it could be regarded as falling within ‘ordinary and reasonable’ agricultural practice. Accordingly, he had concluded that the use of the building would be a mixed use for agriculture and ancillary purposes (including lavender production) and also the production of soap.

The appellant now sought permission for retention of part of the barn instead. The current inspector recognised that removal of the element of soap production had led to a commensurate reduction in the size and scale of the building. The proposed building would now be used for the existing agricultural needs of the farm together with the needs of the growing of lavender and the production of lavender oil, he determined. This time, the inspector allowed the appeal, concluding that the proposal was not inappropriate development in the green belt.

This is an interesting albeit unusual case because as the inspector indicates there are a number of other types of produce and processes which might be analogous.

The following DCP chapter is relevant: 22.1135

Nice try

The retention of a building ‘for feed preparation and as a shelter (for agricultural workers)’ on a farm in Leicestershire was denied a lawful development certificate after an inspector was unable to conclude that the building was required for the purposes of agriculture (DCS Number 400-010-680).

The inspector envisaged that such a building would have basic facilities such as an area set aside for animal feedstuffs and their preparation possibly in the form of a kitchen, and a further room for shelter with rudimentary furnishings. Within the building, however, there were a number of rooms including a kitchen, a lounge/dining area, two bedrooms and a bathroom. The building was furnished with curtains, a bed, a dining table with chairs, a child’s rocking horse, a large television and sofas. Outside, there was a garden and planters. The inspector considered that this displayed all the attributes of a dwellinghouse.

Nice try, but no.

The following DCP chapter is relevant: 22.1321

What difference does it make?

Two recent cases have set the team wondering about the rationale behind the wording of the GPDO.

In (DCS Number 400-010-438) permission for the residential conversion of a building in Devon under Class P, Part 3, Schedule 2 of the GPDO was denied because it had not been used solely for a storage or distribution centre use. The inspector noted that the building was being utilised for storage purposes in connection with the appellant’s own business, for paid storage purposes by others, and for some minor domestic storage. He held that some of those purposes, such as the storage paid for by others, could be said to fall within Use Class B8. However, other purposes were connected to the appellant’s permaculture activities on the wider site. This would not fall under the ambit of Use Class B8, but was storage which was ancillary to the primary use of the site for the purposes of permaculture. The building was therefore being used for a mixture of purposes and the conversion was not one that is permitted by Class P of the 2015 Order.

In west London the residential conversion of a recruitment office was denied permission under Class O of Part 3, Schedule 2 of the GPDO because the office use was deemed to fall within Use Class A2 rather than Use Class B1a (DCS Number 400-010-635). The appellant argued that the first and second floor premises did not have a ground floor frontage and were not open to visiting members of the public. The inspector pointed out, however, that there is nothing within Class A2 which stipulates that such uses are required to have a ground floor presence or to be open to visiting members of the public.

Scrutiny of the GPDO reveals no reason to challenge either inspector’s decision. The challenge lies in discovering the logic behind the GPDO’s differentiation between different types of storage uses and different types of office uses.

The following DCP chapter is relevant: 4.3423

How to win long-term advertisement consent in a city centre

Manchester City Council was overruled on its refusal of advertisement consent for a scaffold shroud advertisement measuring 20m by 10m screening the exposed side of a listed building in a central conservation area (DCS Number 400-010-560).

The council was concerned that the retention of the advertisement for a further 12 months, after already having been in place for over two years, could delay potential development of the adjacent site due to the income that would be generated from the advertisement, which would cause the site to remain vacant and undeveloped and cause the listed building to further deteriorate.

The inspector found it fanciful to presume that a landowner would forgo the opportunity of the capital value and revenue opportunities that could accrue from a new building on a prime city centre site simply in order to maintain an income stream from a scaffold shroud screen advertisement. He acknowledged that it was preferable that the site, which was vacant and derelict, should be re-developed to a suitably high standard in fairly short order. However, allowing the appeal, he decided that retention was a necessary and acceptable expedient in the short term.

Provided that the financial assumptions inherent in this decision are correct, negotiations concerning the redevelopment of the site might well see progress within the life of the consent. If, on the other hand, the greater economic benefit lies in the prolonged display of the advertisement, Manchester’s suspicions will be proven to be well-founded. And it will also send a signal to the advertising industry that there is gain to be had from perpetuating the dereliction of city centre sites.

The following DCP chapter is relevant: 30.0342

‘A dual-pitched roof’ means one dual-pitched roof, not two dual-pitched roofs

A householder in Buckinghamshire failed to convince an inspector that a curtilage swimming pool building would be permitted development, the inspector ruling that ‘a dual-pitched roof’ excludes buildings with two dual-pitched roofs (DCS Number 400-010-392).

The proposed building would have a central ridge with a dual-pitched roof, a projecting gable with a dual-pitched roof set below the ridge line of the main roof, and a lean-to on one flank. This arrangement would result in five different roof pitches. The appellant suggested that the term dual-pitched was used by legislators in the GPDO to differentiate between commonly found roof types and that it was not intended to restrict particular design styles.

The inspector acknowledged that the Technical Guidance states that ‘the height limit on a dual-pitched roof should also be applied to buildings that have hipped roofs (slopes on all four sides)’. He ruled, however, that the term ‘dual-pitched roof’ is very specific, and was not persuaded that the intention of the GPDO was to permit alternative roof forms with multiple pitches of the kind proposed. He concluded that the building would not have a dual-pitched roof. As a consequence, the maximum permitted height of the structure would be 3 metres. The building would be above that limit and, accordingly, would not constitute permitted development under the terms of the GPDO.  The council’s failure to grant a LDC in respect of the proposed detached swimming pool building was well-founded, he determined.

The following DCP chapter is relevant: 4.3421

The perils of good neighbourliness

An appellant in Middlesex found himself with an unlawful extension after falling foul of the prior application procedure regulations (DCS Number 200-004-604).

The appellant proposed a 6m deep single storey extension to his semi-detached house under the prior application procedure and no objections were received from neighbours. A No Objection response was issued by default once 42 days had elapsed, an inspector recorded, and was therefore permitted development. The appellant then started to build the extension but a neighbour raised a concern about its position in relation to their shared access. Accordingly, the appellant decided to set in part of the side wall of the extension adjacent to the shared drive by some 600mm for a distance of 2.84m from the end elevation. In addition, the internal arrangement was altered, and a window was omitted from the end elevation and was instead inserted into the side elevation facing the shared access. In order to regularize the development the appellant then submitted an application for a certificate of lawful development.

The inspector acknowledged that the building was no bigger than the 6m limit on larger extensions that can be dealt with by way of the prior notification process and that it was smaller than shown on the plans originally submitted with the appellant’s notification. Nevertheless, she agreed with the council that what had been built was materially different from that which was the subject of the prior notification. Since there was no agreement to any variation to the plans to accord with what had been built, the extension was not permitted development, and furthermore, no express planning permission has been granted. The inspector acknowledged that the appellant believed that the change in design was minor, and that it was done with the confirmation of the neighbour in the interests of good relations. She nevertheless concluded that the council’s refusal to grant a certificate of lawful use or development in respect of the single storey rear extension was well-founded and that the appeal should fail.

The council stated that they would have carried out the notification of local residents again had revised plans been submitted before construction, and this might have been the right thing to do as it appears that the neighbour wavered over the side window in the extension. From the appellant’s point of view, however, the stated intention set out in the PPG that the statutory requirements for prior approval should be much less prescriptive than those relating to planning applications must ring somewhat hollow.

The following DCP chapter is relevant: 4.3421