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Re-place-ment

Q When is a replacement not a replacement?

A When it’s not in the same place

A proposal to demolish an outbuilding and construct a garage/office/annexe at a house in the green belt in Derbyshire was turned down after an inspector decided that it could not be considered to be a replacement building in the terms of paragraph 89 of the NPPF (DCS Number 400-014-694).

The inspector acknowledged that the site already benefited from permission for the demolition of the large outbuilding adjacent to the dwelling and its replacement with a new garage with home office and single storey dependent relative accommodation. The appeal scheme proposed an identical building to that already approved but located approximately 80 metres to the rear of the dwelling at the rearmost part of the garden.

The inspector also acknowledged that there was a building of a similar size and scale to the proposed building within the site, and that the appellants intended to demolish this and were prepared to accept a condition to that effect. However, she found that the proposed building would be in a materially different location from the existing outbuilding, some 80 metres from the rear of the dwelling. The building would not therefore be put back in its previous position in the meaning of the word ‘replacing’ as defined in the dictionary, she reasoned. Given the considerable distance between the existing outbuilding to the rear of the dwelling and the proposed building, she was not persuaded that the proposal could justifiably be considered a replacement building for the purposes of paragraph 89 of the Framework.

The inspector also found that the proposal would be more visually prominent than the existing outbuilding and would therefore have a greater visual impact resulting in moderate harm to the openness of the green belt.

We can understand the inspector’s concern about visual harm, but was it right to say that the building would not be a replacement when it would be within the same curtilage? What do readers think?

The following DCP section is relevant: 4.251

It takes all sorts

An appellant seeking outline permission for a dwelling adjacent to a sweet factory in west Yorkshire (DCS Number 400-014-654) has enjoyed the taste of success.

An odour assessment undertaken by the appellant reported that barely detectable “delightful” scents were experienced within the site boundary. The factory and the council disputed the findings of the report, however, the factory saying that the odour could be a lot stronger than reported and that strong smells were noticed throughout the town.

The inspector found that the general consensus amongst locals was that the smells were pleasant. In her judgement, therefore, they were not a nuisance. In any event, she reasoned, one more dwelling in the town would not threaten the viability of the factory if so many other residents could smell the sweets too.

Sweet!

The following DCP section is relevant: 8.337

Must try harder

The Blog recently reported a case in which an inspector was scathing about a council’s failure to substantiate a costs claim. It gets worse! In the appeal reported in First written warning the council did at least argue its case in relation to the unauthorised development. In a more recent case, however, (DCS Number 400-014-612) the council hasn’t even troubled to do that much. The inspector’s decision was short, and consists of little more than his findings that: the appellants were of the view that the extension would be lawful because the operations proposed would be permitted development; the council had not provided any justification as to why the appellants’ contentions were not correct; having had regard to the GPDO he agreed with the appellants. Unsurprisingly, the inspector awarded costs against the council. He found that the council had failed to:

  • determine the three applications that were made to them.
  • give the applicants a proper explanation as to why they were unable to determine the applications within the prescribed limits.
  • explain why permission would not have been granted had the application been determined within the relevant period.
  • respond to the applications for awards of costs made by the applicants.

This kind of behaviour is really not going to improve our standing in the community.

The following DCP section is relevant: 5.34

Complex and strategically important development

Can anyone help out with a definition of ‘complex and strategically important development’?

Two recent appeal decisions have given us pause for thought on this matter. In the first, concerning nine dwellings, the inspector explained that “Paragraph 21a-010-20140306 of the PPG advises that only in exceptional circumstances can a negatively worded condition requiring a planning obligation or other agreement to be entered into before certain development can commence be appropriate such as in the case of more complex and strategically important development where there is clear evidence that the delivery of the development would otherwise be at serious risk.  As the proposal is for only nine dwellings I do not consider it to be either complex or strategically important.” Thus, she could only give limited weight to the social benefit of affordable housing (DCS Number 400-014-625). In the second appeal, seeking outline approval for twelve dwellings, the inspector was “satisfied that affordable housing could be secured through the imposition of a planning condition.” (DCS Number 400-014-624).

So, what might constitute ‘complex and strategically important development’. Is it ten dwellings, is it eleven dwellings or is it that – say these two words quietly – *nobody knows*?

The following DCP section is relevant: 4.61

Anschluss

You would think, after two world wars, that they might have learned that attempts at annexation never end well. But no, they’ve been at it again. We are nonetheless very pleased to report that a gallant inspector has single-handedly foiled a German plot to annexe part of London’s Belgravia (DCS Number 400-014-581).

This appeal related to the retention of five folding bollards and the change of use to Embassy land immediately to the rear of the German Embassy. The appellant stated that following the terrorist threat level being raised by the Government to severe in August 2014, the security bollards were installed to prevent a terrorist attack from inconspicuously parked vehicles containing a bomb adjacent to the rear wall of the German Embassy building. The inspector acknowledged that the appellant’s appeal documents made it very clear that the purpose of the development was to provide protection against terrorist attacks and to improve security for Embassy staff and buildings. However, he found that it was simply not clear how the land might be used. (We might be able to offer some insight here, sir. Think Austria, March 1938.) For this reason alone he concluded that the appeal should be dismissed insofar as it related to the change of use to Embassy land.

Magnanimous in victory, the inspector allowed the retention of the bollards. Rather than resulting in harmful effects, he considered that as well as improving security they would prevent on-street vehicle parking and servicing by both the Embassy staff and local residents, thus reducing the levels of noise, disturbance and general activity that would harm living conditions.

The following DCP section is relevant: 3.162

Cultivating equality

We know that planning inspectors are not heartless people so it must be very difficult for them when they feel compelled to deploy an all-too-familiar piece of text. This runs along the lines of “Whilst I have given these personal circumstances careful consideration, I am mindful of the advice contained in Planning Policy Guidance that in general planning is concerned with land use in the public interest. It is also probable that the proposed development would remain long after the current personal circumstances cease to be material.” [Translation: The building will be there long after your frail parent/disabled child is dead so I’m really sorry but I’m going to have to dismiss this one.]

Thank goodness, then, for the Equality Act 2010, which came to the aid of an inspector dealing with a proposal in Lincolnshire for a building and the use of land to support a land skills programme for young people with special needs (DCS Number 400-014-546). The intention was that the site would provide a programme where the students could learn about planting, seeding, growing, compost manufacture and general site maintenance. The inspector considered that the building was an urbanising feature within the rural area and therefore harmed the character and appearance of the countryside. On that basis the proposal conflicted with national and local planning policy, she found.

Nevertheless, the inspector was able to turn to the Public Sector Equality Duty (PSED) contained in section 149 of the Equality Act 2010, which sets out the need to eliminate unlawful discrimination, harassment and victimisation, and to advance equality of opportunity and foster good relations between people who share a protected characteristic and people who do not share it. She reasoned that since the appeal was made for the use of the building for training/activities for people with a disability, it was for people who shared a protected characteristic for the purposes of the PSED. With this in mind she decided that the social benefit of the scheme outweighed the harm to the countryside and the conflict with development plan policy. She accepted that the viability of the scheme had not yet been proven so granted permission for three years in order to allow the project time to prove itself.

The following DCP section is relevant: 4.175

We need to talk about Airbnb….

…because it’s getting bigger all the time and we need to set boundaries.

An appeal against an enforcement notice directed at the use of an outbuilding in the Lake District for letting through Airbnb (DCS Number 400-014-522) is a case in point. The appellant contended that the building was effectively an additional bedroom to the main house and was let only occasionally through Airbnb. Having examined the information on the Airbnb website, however, the inspector came to the conclusion that a material change of use had occurred and therefore a breach of planning control had taken place. He upheld the notice.

For those not familiar with Airbnb, the name originates from air-bed and breakfast. Those with a spare room, an outbuilding or indeed a whole unit of accommodation can advertise it on the website for holiday letting. Clearly, there are planning implications, perhaps not least for the traditional tourism industry. Very often the planning system finds itself having to catch up with developments in the real world. Maybe this time we ought to recognise what is happening right in front of us and discuss what our approach ought to be. Anybody out there up for some dialogue on this?

The following DCP section is relevant: 9.5

Remote access

Readers living and working in rural areas and struggling with their phone signal might be interested in a recent appeal decision in which the inspector recognised the economic and social benefits of decent telecommunications infrastructure (DCS Number 400-014-533).

The appeal was made against the refusal of planning permission for a 16m high telecommunications column in the green belt north of Leeds. The inspector ruled that the column would be inappropriate development in the green belt since it was not listed as an exception under Paragraph 90 of the NPPF. She held that it would result in limited harm to the openness of the green belt since it would introduce a very small amount of built development where currently none existed. She also found that it would be a somewhat obtrusive manmade feature within the landscape and would result in some harm to the character and appearance of the countryside.

The inspector recorded, however, that 4G coverage was virtually non-existent for large parts of the area, and that the parish council had expressed support for the proposal, saying that phone reception was not good. She made reference to paragraph 42 of the NPPF which says that advanced, high quality communications infrastructure is essential for sustainable economic growth and that the development of communications networks also plays a vital role in enhancing the provision of local community facilities and services. She concluded that the public benefits of the proposal would amount to the very special circumstances sufficient to justify permitting the proposal.

The following DCP section is relevant: 28.138

First written warning

Rumour has it that planners have a tendency to keep quiet about their profession at parties, and given some of our colleagues’ behaviour on occasion it isn’t hard to see why the public perception of the planning profession is not always as elevated as it might be. Three cheers to the planning inspector who recently upbraided a council for its poor behaviour in making an unsubstantiated costs claim.

The council had made an application for a full award of costs in relation to an appeal made against an enforcement notice (DCS Number 400-014-405). The inspector noted, however, that it had not offered any reason why the mere act of submitting the appeal might be said to constitute unreasonable behaviour. In fact, he said a bit more: “In fifteen years as a Planning Inspector this is the most pathetic application for costs I have ever had the misfortune to have to adjudicate on.” He continued that in the context of a statutory right of appeal it would be quite extraordinary for him to make an award of costs against an appellant merely because they had exercised their right of appeal. He further noted that inspectors can use their powers to make an award of costs where they have found unreasonable behaviour, including in cases where no application has been made. He had personally never exercised that power but had seriously considered whether to do so having regard to: the council’s failure to attend the site visit; its introduction of new policies that were not quoted on the face of the notice; its apparent misunderstanding of national policy; and, there being, at the very least, a question as to whether a more helpful approach could have resulted in the appeal being avoided. Put bluntly the application for costs was so frivolous as to be a complete waste of public resources, he concluded.

The inspector decided, nevertheless, to exercise his discretion not to initiate an application for costs but warned the council to take his comments on board to avoid any prospect of such an award being made in the future.

They can’t say they haven’t been warned.

The following DCP section is relevant: 6.12

A close match?

Readers dealing with domestic extensions will be aware that Condition A.3(a) of Schedule 2, Part 1, Class A of the GPDO requires the materials used in any exterior work to be of a similar appearance to those used in the construction of the exterior of the existing dwellinghouse. The Technical Guidance for Householders offers guidance on what this ought to mean in practice but to some extent the meaning of ‘similar appearance’ must be drawn from precedent. On this basis, a recent appeal case in southwest London (DCS Number 400-014-332) is of interest.

The inspector noted that the Technical Guidance states that the condition is ‘intended to ensure that any works to enlarge, alter or improve a house result in an appearance that minimises visual impact and is sympathetic to existing development. This means that the materials used should be of similar visual appearance to those in the existing house, but does not mean that they need to be the same materials. For example the external walls of an extension should be constructed of materials that provide a similar visual appearance – for example in terms of colour and style of brick used – to the materials used in existing house walls.’

The council contended that the extension which had been added to the rear of the terrace house was not permitted development because the materials did not have a similar appearance to those of the exterior of the existing dwellinghouse. The inspector acknowledged that the extension was rendered whereas the rear elevation was yellow brick. Indeed, she acknowledged that there was no render at the rear on any of the rest of the terrace. She pointed out, however, that the first floor of the front of the house was rendered.

The inspector reasoned that there is no mention in the GPDO of matching materials being limited to those on the elevation to which an extension is to be attached. Consequently, she found that the extension did meet the wording of condition A.3(a) when given its literal interpretation. She issued a certificate of lawfulness accordingly.

Do readers have any thoughts on this?

The following DCP section is relevant: 4.3421