Latest Posts

Vertical Sky Component – an explanation

The Building Research Establishment’s daylight standards are often quoted but it is easy to forget how they actually work. Here is a handy guide, lifted from an inspector’s decision (DCS Number 400-012-993).

The 25° rule is a simple initial assessment. If a development proposal does not obstruct a 25° line in a vertical section from a point at the centre of the lowest window of property that might be affected, there is no need to go further and the effect is deemed to be acceptable. If that is not the case, a more detailed assessment is required which takes account of open space or obstructions either side of the vertical section. This is the Vertical Sky Component.

Vertical Sky Component is a measure of the amount of sky visible from a centre point of a window. A window that achieves 27% or more is considered to provide good levels of light, but if with the development in place the figure is both less than 27% and would be reduced by 20% or more, the loss would be noticeable.

That’s the maths done. The next step, of course, is to relate the information to national and development plan policy.

PS Don’t confuse daylight and sunlight. Many do but you know better.

The following DCP chapter is relevant: 4.1353

Q Is horticulture agriculture?

A It depends.

Readers working in the rural area will be aware that agriculture, as defined in s336 of the Town and Country Planning Act 1990, includes horticulture. Nevertheless, an inspector has issued a certificate of lawfulness for the occupation of an agricultural dwelling in Cornwall in breach of the occupancy condition, finding that the appellant’s occupation as a gardener did not comply with its terms (DCS Number 200-005-591).

The appellant was a self-employed gardener, maintaining domestic gardens. About 80 per cent of his work was lawn mowing, the rest was trimming hedges, pruning fruit trees and tending flower and vegetable beds. The council considered that his occupation as a gardener meant that he did comply with the condition. The definition of horticulture adopted by the Chartered Institute of Horticulture (CIH) included garden tending or maintenance, and the appellant’s occupation as a domestic garden maintenance worker clearly fell within the CIH definition of a Professional Horticulturist.

The inspector reasoned, however, that the CIH definitions relied upon by the council were very widely cast. For example, activities such as garden design, plant conservation and horticultural therapy were included. It would not be sensible in his view to consider all workers carrying out such activities to be agricultural workers. Noting that the definition of agriculture in the 1990 Act is concerned with the use of land for production, rather than, for example, recreation, sport or domestic gardening, the term ‘horticulture’ must be limited accordingly, he held. He also noted that the appellant’s business did not provide for the needs of agriculture, nor was there any need for it to be located in a rural area. Put simply, it was not the type of employment that the exception to planning restraint in the countryside was intended to cater for, he decided. As the appellant had lived in the farm dwelling in breach of the condition for over ten years it was immune from enforcement, the inspector concluded.

The following DCP chapter is relevant: 9.334

To coin a phrase

Inspectors must sometimes think that they spend half their lives correcting enforcement notices and, for whatever reason, it does seem that enforcement gets more than its fair share of criticism. This, to the point that an inspector determining an appeal against an enforcement notice alleging “a mixed use of agriculture and domestic” in Devon (DCS Number 400-012-983) found that the whole situation was such a mess it was ‘omniflawed’.

The council did not seem to have realised that when issuing an enforcement notice directed at the use of a site in mixed use, all the components of the mixture have to be included in the allegation, irrespective of whether some of them considered individually might have been authorised, immune or otherwise lawful, the inspector noted. He explained that otherwise, if the notice is upheld, unconditional planning permission is granted for all the uses not included in the allegation. In the case before him this would include industrial and commercial storage uses. He concluded that the allegation in the enforcement notice was so defective, and as a result the notice was so seriously faulty, that he could not see how he could properly uphold it.

It wasn’t just the council finding itself in the line of fire, however. “The appellant and his agent have made such a mess of the appeal that I would be entitled to dismiss it summarily, without considering it in any detail, since no relevant facts or arguments have been put forward to support the appeal.” “In summary, both sides in this case have created a situation which is best described (here I have to adapt modern English usage) as omniflawed.”

The following DCP chapter is relevant: 4.533

Q When is a flat not a flat?

A When it’s a house.

A number of London boroughs have housing policies which seek to resist the conversion of family housing to flats in order to provide choice and meet housing need. An inspector allowing an appeal against the refusal of permission for the conversion of a six-bedroom semi-detached house in southeast London to three flats appears to have used some rather shaky logic (DCS Number 400-012-949).

A local plan policy defines a family house as having three or more bedrooms, he recorded. The aim of the policy is clearly to retain family houses which are seen as a valuable resource, he reasoned. The proposed three bedroom flat on the ground floor would provide a family house in accordance with this definition and as such the proposal would retain a valuable single family house, he concluded.

Hmm. Bats can fly. Creatures that fly are birds. Therefore, bats are birds.

The following DCP chapter is relevant: 11.1321

Old habits die hard

In Out of sight, out of mind we reported an appeal case in which the inspector cited the Court of Appeal decision in John Turner v Secretary of State for Communities and Local Government and East Dorset Council [2016]. This established that the question of visual impact is implicitly part of the concept of openness of the green belt. We asked whether the effects of the court case have yet to become apparent. Not so much, appears to be the answer, as evidenced by the following recent decisions from two different inspectors.

“I note the appellant’s view that the car port would be largely unseen and therefore have very little impact on the openness of the Green Belt. However, the widely accepted view of openness is the absence of development and therefore I give this matter little weight when reaching my decision.” (DCS Number 400-012-825).

“Openness is generally defined by an absence of built form.     …..The 2-storey structure is.….only visible in a fleeting glimpse.…..     Moreover, whether or not the structure is visible from a public viewpoint, there is, as a matter of fact, a permanent loss of openness.” (DCS Number 400-012-847).

These things take time.

The following DCP chapter is relevant: 4.2516

Out of sight, out of mind

Not so long ago the view of inspectors was generally that the impact on openness in the green belt had little to do with whether or not development could be seen. Any physical structure would necessarily reduce openness, it was reasoned. A recent court case appears to have changed things somewhat radically, however.

In quashing an enforcement notice requiring the removal of a 10m by 10.3m building associated with a microlight airfield in the green belt in Lancashire (DCS Number 400-012-730) an inspector acknowledged that in purely physical terms the building affected the openness of the green belt. He recorded, however, that the Court of Appeal in John Turner v Secretary of State for Communities and Local Government and East Dorset Council [2016] recognised that the question of visual impact is implicitly part of the concept of openness of the green belt. He observed that the nearest buildings were about 350m distant, and the council made no claim that the appeal building was visible in the landscape from any public vantage points. He noted, in addition, that the High Court in Europa Oil and Gas Limited v Secretary of State for Communities and Local Government [2013] had recognised that the impact of a development on openness was not necessarily related to its size but also to its purpose. The appeal building was fit and appropriate in scale for its purpose, and had no more effect on openness than was necessary, he found. Despite its size, the inspector concluded that the building did not have any visual effect on the openness of the green belt.

John Turner has to be a very significant case. Have its effects not yet become apparent or did the DCP Blog miss the hoopla?

The following DCP chapter is relevant: 4.2516

Just not listening

Having awarded costs against a planning authority after finding that its “unreasonableness was compounded by its obduracy when presented with clear and compelling evidence on relevant case law by the appellant” an inspector must have been a little surprised to find that the authority had again refused planning permission for a similar development for the same reason.

In both cases (DCS Number 400-010-697) and (DCS Number 400-012-716) the authority had refused permission for the conversion of an outbuilding to a granny annex. The inspector ruled that the authority’s insistence on the sharing of facilities with the host dwelling failed to reflect the long established view that this is not the relevant test in such cases. He acknowledged that it is an error sometimes made by planning authorities and that it is important to protect the countryside from the inadvertent or unintended creation of new independent dwellings. He recorded, however, that the relevant case law: Wakelin v SSE and St Albans District Council [1978]; Whitehead v SOS and Mole Valley DC [1991]; and Uttlesford DC v SSE and White [1992], is all now of well over 20 years standing. He explained that the effect of these judgements is that the main issue is whether the appeal scheme would or could create a separate planning unit, and that a fact and degree judgement has to be made on the specific circumstances. After examining the circumstances in both cases the inspector concluded that the proposal would not be tantamount to a new dwelling in the countryside.

In respect of the second case the authority argued that a condition limiting the use to ancillary purposes would be inappropriate and impractical. The inspector pointed out, however, that this ignores government policy in the NPPF and the PPG which is to consider whether planning conditions can be imposed to enable a grant of permission for development that would otherwise be unacceptable. It also displayed a lack of knowledge of the advice in previous Circular 11/95 and its model condition specifically relating to granny annexes.

The following DCP chapter is relevant: 10.43

September song

Oh, it’s a long, long time

from May to December,

but the days grow short

when you reach September.

Ol’ Blue Eyes’ song about autumn years, poignant though it is, is sadly lacking in insight into the planning definition of a season. Luckily, an inspector dealing with an appeal against the refusal of a certificate of lawfulness for a proposed mobile home at a farm in Essex has been able to contribute (DCS Number 400-012-662).

The inspector recorded that Schedule 2, Part 5, Class A of the GPDO allows for the use as a caravan site of agricultural land for the accommodation during a particular season of a person or persons employed in farming operations on land in the same occupation. The dispute between the parties centred on whether the proposed use would be for a particular season.

The appellant explained that the caravan would be occupied for two seasons in each year for the breeding and rearing of chickens, turkeys, ducks and geese for the table. One period would be from October to late December and the other would be from January to late March or April, to meet increased customer demand at Christmas and Easter. The inspector considered, however, that the six to seven months proposed was more than ‘a particular season’ as a matter of fact and degree. Rather, it was two seasons and the length of the combined continuous period was not sufficiently temporary to be properly regarded as a seasonal use.

The council’s decision to refuse a certificate of lawfulness was upheld.

The following DCP chapter is relevant: 9.312

Changed priorities on affordable restriction

A recent appeal decision in Shropshire tells us that it is worth comparing affordable housing restrictions on existing property against current local planning policy, an inspector having lifted a planning obligation from a house in the light of changed priorities (DCS Number 400-012-611).

The inspector noted that the local plan had restricted open market housing to urban areas and settlements, but that it had allowed for affordable housing throughout the district. Accordingly, the dwelling had been granted planning permission as an affordable dwelling on the village site. The prevailing policy had changed, however, under the core strategy, and market housing was now permitted in the village. The site was surrounded by development, and it was clear to the inspector that a planning application today for a market dwelling would be in accordance with planning policy.

The inspector acknowledged that there was a continued need for affordable housing in Shropshire. However, the fact that planning policy had changed to allow market housing was an important material consideration and a clear indication of changed priorities towards housing mix in this particular location, he held, holding that it would be wrong to disregard the current development plan policy framework. He reasoned that were a proposal to come forward now for a dwelling on the site, it would be unnecessary and unreasonable to require a restrictive planning obligation of the sort currently applied to the dwelling. It would be inappropriate and inequitable to single out this particular dwelling for continuing restriction when others might be built nearby without such restriction, and indeed where an unrestricted dwelling could be built if the site had remained in the condition it had been before the granting of the original planning permission.

The obligation was not required for the continued maintenance of an affordable dwelling in the location, the inspector concluded.

The following DCP chapter is relevant: 4.628

If at first you don’t succeed, give up

An enforcement notice requiring the demolition of a summerhouse at a property in Lancashire was upheld at appeal (DCS Number 400-012-672), an inspector noting that nothing had changed since an appeal against the refusal of planning permission for its retention had been dismissed in January 2015.

The inspector usefully cited the law on consistency in decision making:

‘The law on consistency in planning decision making is derived from the judgement in North Wiltshire v Secretary of State for the Environment [1993] 65 P&CR 137. At paragraph 145 of his judgement Mann LJ stated that “…like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system”.’

The inspector observed that the case before him was not even one where it must be judged by comparison with a similar case. Rather, it had to be judged against a previous decision for the same case. Nothing of materiality had changed since the previous planning appeal was determined, he found. He concluded that planning permission must therefore be withheld for retention of the summerhouse and thus the appeal must fail.

The following DCP chapter is relevant: 6.421