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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

We live in an ageing society

An inspector has dismissed an appeal seeking the retention of a chalet in the Devon countryside, finding that the appellant’s age and personal circumstances did not outweigh harm to the rural area (DCS Number 400-011-231).

The appellant argued that he was aged 65 and in poor health, and would have nowhere else to live. He moved to the site after a dramatic change in his personal circumstances, bought the site with his remaining capital, and now lived on a pension which was insufficient to allow him to rent a flat in the area and still have adequate money on which to live. This brought little sympathy from the inspector, who noted that no evidence had been provided as to the appellant’s means, and there was nothing from a doctor which said that his conditions prevented him from working. Many people work well past the appellant’s age, he remarked.

We’re wondering, here, how old the inspector was….

The following DCP chapter is relevant: 9.236

C3 or C2?

An appeal case concerning the occupation of a bungalow in Nottinghamshire by five adults with learning difficulties and mental health issues throws light on the distinction between C3 and C2 Use Classes (DCS Number 200-004-885).

The council had served an enforcement notice alleging the unauthorised change of use of the property from a dwellinghouse (C3) to a residential care home (C2). Meanwhile, the appellant sought a certificate of lawfulness, claiming that the existing use was for five residents living together as a single household and receiving care as permitted by C3(b). The inspector found that the enforcement notice had been issued without the proper authority and therefore declared it a nullity. Turning to consideration of the LDC appeal, however, he recorded that Class C3(b) is defined as the use as a dwellinghouse by not more than six residents living together as a single household where care is provided for residents. He reasoned that the fundamental question was whether the residents of the property formed a single household.

The inspector referred to North Devon District Council v First Secretary of State [2003] in which it was held that children were not capable of forming a single household in the absence of a live-in carer on the basis that children are not generally capable of running a household themselves. In the North Devon case the judge remarked that the same would apply to adults who suffer from mental or physical disability who need care in the community. However, that judgment was considered in detail in R (on the application of Crawley Borough Council) v FSS and Eve Helberg (Trading as the Evesleigh Group). In reaching his judgment on ‘Eve Helberg’ the judge remarked that he would be reluctant to read the comments of the judge in the North Devon case as laying down a principle that those who suffer from disability or are in need of care can never constitute a household. He concluded that the correct position is that a judgement needs to be made based upon the facts of each individual case having regard to the nature of the disability suffered and the degree of care required.

The inspector saw that the layout of the property was largely what one would expect of any family home, with a communal lounge, kitchen and garden area. Locks were provided on bedroom doors to provide privacy and security but he held that that, of itself, did not dictate that the residents did not form a single household, having regard to the prevailing sense of communal living. In proportion to the scale of the building as a whole he considered that the manager’s office was small and not unexpected in a home where care was provided. There was nothing inherent within the layout of the property that would suggest that the use would fall outside Use Class C3(b), the inspector determined. In addition, he recorded that the residents had formed friendship bonds. The communal living arrangements and the way in which household tasks were undertaken indicated to him that they were living as a single household, and care was provided on a shift basis such that none of the care workers were resident at the property. He noted that there had been incidents of noise and antisocial behaviour but reasoned that it is inherent within the terms of the Use Classes Order that those with mental disorders may fall within Class C3(b). Whilst acknowledging that the behaviour of residents might seem unusual or intimidating to neighbours, the incidents recorded by the police did not indicate that the residents were incapable of forming a household for the purposes of Class C3(b). A certificate of lawfulness was issued on the basis that the property was in use as a dwellinghouse as defined by Class C3(b) of the Town and Country Planning (Use Classes) Order 1987 (as amended) and no material change of use had taken place from the previous lawful use within Class C3(a) of that Order.

It seemed to the inspector that the purpose of the carers was largely to assist the residents in day-to-day tasks as opposed to undertaking those tasks themselves on behalf of the residents, described as ‘supported living’ by the appellant. This might be a useful test to apply to cases elsewhere when the relevant Use Class needs to be determined.

The following DCP chapter is relevant: 4.333

Rules is rules

There is sometimes uncertainty about whether it is required or permissible to provide an inspector with updated information. A recent court case, Robinson v Secretary of State for Communities and Local Government 22/1/16, provides a steer in respect of housing land supply figures, but is it in the right direction?

A Suffolk resident opposing an inspector’s decision to grant permission for 14 dwellings on an open gap separating two settlements which was used as a community garden claimed that the council should have provided the inspector with updated information on housing land supply. The inspector had decided that in the absence of a five-year supply of housing land, policies restricting the use of open gaps and gardens should be given limited weight, and granted permission. The resident argued that the council should have provided the inspector with updated information which demonstrated that it now had 5.4 years’ supply of housing land.

You can see the resident’s point of view here, the reasoning being that if the inspector had known that the council had an adequate supply of housing land the outcome of the appeal might have been different. Nevertheless, the judge ruled that there was no requirement under the Town and Country Planning (Appeals)(Written Representations Procedure)(England) Regulations 2009 for the local planning authority to update its evidence once new information had come to light, and the inspector’s decision stood. The judge explained that there is a need to safeguard against any and every correction and any new information should be reliable, objective and uncontentious; this prevents the late introduction of unreliable, unverifiable and contentious material.

If we are not to return to a backlog in the legal system worthy of the Court of Chancery there has to be a line drawn somewhere. However, important new evidence surely ought to be recognised as such in the interests of natural justice.

The following DCP chapter is relevant: 5.34

How to get an open market dwelling in the countryside – Part 2

An earlier Blog (How to get an open market dwelling in the countryside) gave examples of cases where agricultural occupancy conditions had been lifted from farm dwellings, thereby resulting in unrestricted rural properties. A recent successful appeal case (DCS Number 400-011-117) involves the lifting of a holiday occupancy condition from a rural property. Permission had been granted in 1991 for the conversion of a Milk Marketing Board sub-base in the Wye Valley AONB to holiday accommodation. The permission carried a condition stating that it should only be occupied for a period not exceeding four weeks for any single letting and a return within four weeks by the same household was not permitted. Holiday use continued from around 1995 to 2008, the inspector noted. The appellant had not provided detailed information to indicate that a holiday let was no longer viable, although it was stated that there is a lack of demand in the winter months for holiday lettings in the area. The property had also been marketed for sale for two years. The inspector agreed with the council that the asking price was high but noted that the appellant had been willing to negotiate.

The inspector reasoned that due to its isolated rural location, the proposal would be contrary to the general principles of paragraph 55 of the Framework. Nevertheless, he considered that this was tempered by the fact that the proposal related to the removal of an occupation restriction for an existing property that had been vacant for a number of years. As such, he took the view that it could be considered in terms of the reuse of a redundant building due to the period of time that had elapsed since it was last used as a holiday let. He concluded that the proposal would bring a vacant property back into a beneficial use thus giving rise to a very small increase in the supply of housing and potentially supporting the local tourist economy.

So, there you have it. Leave a holiday let empty for long enough and you get an open market dwelling in glorious countryside. Neither lack of viability nor appropriate asking price need be proven.

The following DCP chapters are relevant: 4.4262 and 9.541

‘Isolation’ – Now we’re getting somewhere

Readers might recall the contrasting definitions of ‘isolation’ found in two appeal decisions set out in an earlier Blog (As Eurovision approaches….) Another more recent decision (DCS Number 400-011-110) is very useful in offering some insight as to how we might clear this matter up.

This case involved the erection of a house outside a village settlement boundary. The inspector recorded that “Paragraph 55 of the Framework specifically addresses the provision of housing in rural areas. It states that housing should be located where it will enhance and maintain the vitality of rural communities by avoiding isolated homes in the countryside unless there are special circumstances. The Framework does not define the meaning of ‘isolated’.” The inspector decided that “there are two main aspects to be assessed when considering ‘isolation’, these being whether the appeal site is physically isolated relative to settlements and other built development and whether it is functionally isolated relative to services and facilities.” He did not find the site to be physically isolated but he did believe that the development would be functionally isolated.

Obvious, really, when you think about it. Might this approach be usefully employed to improve clarity and fairness in future decision-making? We hope so.

The following DCP chapter is relevant: 9.23

On conditions requiring agreements

A proposal for the erection of two houses within 5km of the Thames Basin Heaths Special Protection Area (SPA) failed, an inspector finding no means to secure a financial contribution towards offsetting the impact on the SPA (DCS Number 400-011-084).

The Thames Basin Heaths SPA is an internationally designated site of nature conservation importance, its ground nesting birds being of special interest. Mitigation measures are normally required in the form of contributions towards Suitable Alternative Natural Greenspace (SANG) in order to ensure that recreational pressure from additional development does not have any significant effect on the special interest features of the SPA.

Under Regulation 123 of the CIL Regulations, however, a planning obligation may not be taken into account if it would fund an infrastructure project for which there are already five or more obligations, and the council confirmed that the only SANG with any capacity to provide mitigation had already received more than five financial contributions. As an alternative, the council suggested the use of a condition requiring the appellant to enter into a land management agreement, but the inspector recorded that the Planning Practice Guidance makes quite clear that a condition limiting the development that takes place until a planning obligation or other agreement has been entered into is unlikely to be appropriate; such conditions should only be used in exceptional circumstances in more complex or strategically important development. The erection of two houses did not seem to her to fall within this category. Planning permission therefore could not be granted, she decided, notwithstanding the lack of harm to the character and appearance of the area.

This case contrasts with (DCS Number 400-010-764), the subject of DCP Blog Where there’s a will….. In that case the only obstacle which stood in the way of the residential conversion of offices proceeding was the need for an obligation to prevent future occupiers applying for or being entitled to residents’ parking permits. The inspector was satisfied that a negatively worded condition which prevented the development proceeding until an obligation was entered into was appropriate in the circumstances.

Clearly, it is a matter of judgement for the inspector as to what constitutes exceptional circumstances, but if the lack of a means to prevent residents applying for parking permits constitutes exceptional circumstances, then the lack of a means to secure mitigation to offset impact on biodiversity ought also to constitute exceptional circumstances, oughtn’t it?

The following DCP chapter is relevant: 4.43

Cheque payment fails to start the clock

An inspector decided that a cheque payment for a prior approval application failed to start the clock ticking and as a consequence the council had made its decision within 56 days (DCS Number 200-004-820).

A certificate of lawfulness was sought at appeal following the refusal of the prior approval application. The prior approval application related to the conversion of offices in north London to flats under the GPDO. The appellant submitted the application on 26 June 2014 with a cheque. The council had a policy of not accepting cheques, however, and the appellant was requested to make a more ‘immediate’ form of payment. The appellant having done so, the application was registered on 4 July 2014. The inspector recorded that if the application was valid on 26 June 2014 the council’s decision would have exceeded the 56 day limit and if valid on 4 July 2014, the decision would have been made within the 56 day limit. He took into consideration The Town and Country Planning (Development Management Procedure) (England) Order at the time of the application and as revised in 2015 for planning applications which makes specific reference to payment by cheque, noting that they should be taken as payment. However, there is no provision in the GPDO for how payments generally, and payments by cheque in particular, should be handled, he noted. Without the statutory requirement he found it reasonable that the council should be able to choose the method of payment for prior approval applications. Therefore, the application was refused within the appropriate time and the appeal failed on this ground alone.

Opinion: This is another example of a discrepancy between the planning application regime and the prior approval application regime. It’s time this was looked at properly. Seriously.

The following DCP chapter is relevant: 5.152

Another note on record-keeping

A north Wales resident’s challenge to the local council’s decision that an environmental assessment was not required for two wind turbines failed, a High Court judge deciding that the planning officer was able to provide an accurate account of the information that had been taken into consideration in its decision (Jedwell v Denbighshire County Council [10/3/2016]).

The judge noted that the council was required to give adequate reasons for not requiring an environmental assessment after a negative screening decision in accordance with Mellor v Secretary of State for Communities and Local Government [2010]. He held that it was important for all authorities to maintain a record of the reasons for issuing a negative screening opinion so that this could be provided on request. If reasons could be provided, he added, the courts would be slow to quash permissions. If, however, no contemporaneous reasons were forthcoming, the courts might well quash a decision unless the planning authority could show that the decision would have been the same. In the case before him, he was satisfied adequate reasons had been provided and it was not appropriate to grant the claimant’s request because no prejudice had arisen.   

Local authorities might wish to check the extent and nature of the information being kept on record in the light of this ruling.

The following DCP chapter is relevant: 5.153