Latest Posts

In pants

Gary Lineker had to present MOTD in his underpants after Leicester City won the Premier League. The Blog finds itself in similar attire after betting its shirt on never seeing an inspector rule contrary to Government advice on affordable housing (Back in the real world). Because….an inspector has ruled contrary to Government advice on affordable housing (DCS Number 400-012-563). This appeal related to the redevelopment of a garage at a house in Surrey with a bungalow. Core strategy policy stated that for proposals comprising between one and four dwellings a financial contribution towards affordable housing should be sought, to be secured by means of a planning obligation. Whilst the developer initially indicated a willingness to provide the contribution the offer was subsequently withdrawn.

The inspector identified a conflict between the national threshold relating to the provision of affordable housing in the Written Ministerial Statement (WMS) of November 2014 and the thresholds set out in local policy, which he found to be consistent with Paragraphs 47 and 50 of the NPPF requiring local planning authorities to set policies for meeting affordable housing need.  

The council explained that median house prices in the borough were exceptionally high and were amongst some of the highest in the country. The evidence suggested that house prices were rising higher than neighbouring authority areas and that the affordability ratio was  21.5 times the average lower quartile net income, placing it as the least affordable authority in England outside of London.

The inspector concluded that whilst the WMS carried considerable weight, it did not outweigh the development plan given the acute and substantial need for affordable housing in the borough and the importance of delivery through small sites towards this. In the absence of a planning obligation the appeal was dismissed.

The following DCP chapter is relevant: 8.2354

Ejusdem generis!

Ejusdem generis might sound like a spell from Harry Potter’s Big Book of Wizardry but in planning it is a term used to describe development which is of the same kind or nature.

An appeal relating to a council’s refusal to issue a certificate of lawfulness for planters sited around the edge of a flat roof at a house in west London usefully illustrates its meaning (DCS Number 400-012-507).

A condition attached to the planning permission for the rear ground floor extension stated that no railings, fences, walls or other means of enclosure should be erected on the roof, the reason being that the council was concerned that use of the roof could harm the amenity of adjoining occupiers as a result of overlooking and noise and disturbance.

The inspector explained that the words ‘other means of enclosure’ were governed by the ejusdem generis rule which meant that the means of enclosure must be similar to a gate, fence or wall. She noted that the planters would form a virtually continuous solid barrier some 50cm high and some 50cm deep around three sides of the flat roof, the fourth side being the rear elevation of the house. In her opinion this would be akin to a low parapet wall around the flat roof and as a matter of fact and degree she considered that the planters would therefore be similar in principle to a gate, fence or wall. A certificate of lawfulness was denied.

In other words, the inspector’s ruling signifies that the placing of the phrase ‘other means of enclosure’ after words having a specific meaning means that it cannot be construed in its general and widest sense but must refer to development of the same kind or nature. The similarity of the planters to railings, fences or walls meant that the proposal was ‘caught’ by the ejusdem generis rule.

The following DCP chapter is relevant: 4.3422

It’s an ill wind….

Time for some more lavatory humour:

An inspector has modified a condition attached to the permission for a replacement dwelling in Suffolk, thereby authorising the retention of a top-opening ground floor toilet window (DCS Number 400-012-481).

The original condition stated that the window should be non-opening. The inspector found, however, that the council had failed to articulate why, in their opinion, the opening of the downstairs toilet window resulted in a harmful level of noise and disturbance for the occupiers of the neighbouring house.

The inspector stood outside the window when open and listened to the toilet flush. Whilst audible, he found that it was not particularly loud. The audibility of the toilet flushing would be likely to be even less noticeable from within the neighbours’ garden, he reasoned, given the presence of the intervening boundary wall. Furthermore, he considered that this effect would be similar for any other noises that might emanate from a toilet when being used.

Ripping fun!

The following DCP chapter is relevant: 4.137

The devil is in the detail

In considering an appeal against the refusal of an outline scheme for 15 dwellings on high quality agricultural land in Derbyshire, an inspector accepted the appellant’s argument that the steep gradient of the site would limit the use of mechanical farming methods (DCS Number 400-012-416).

The appellant argued that the grade 2 quality agricultural land should be re-graded as grade 5. The inspector explained that it was not her role to determine whether the land should be re-graded as lower quality. She did find, however, that the narrow nature of the site together with the steep gradient at one end would diminish its attractiveness for more intense agricultural methods. Consequently, given the nature of the site she considered that the need for housing in the area was a material consideration which would outweigh the loss of the grade 2 agricultural land.

So, if the Agricultural Land Classification plan tells you no, have a look at the contours.

The following DCP chapter is relevant: 4.145

A trail of lawsuits

You don’t have to look far to find an example from Donald Trump’s trail of lawsuits, referred to by President Obama in his farewell address in Philadelphia. An inspector has recently cited Trump International Golf Club Scotland v Scottish Ministers [2015] in declining to issue a lawful development certificate for the retention of a rear extension at a house in east London (DCS Number 400-012-343).

In 2013 planning permission had been granted for the demolition of the existing rear extension and an outbuilding and the erection of a one-bedroom house . The permission had been implemented to the extent that the outbuilding had been demolished and the new house had been built. The rear extension had never been demolished, however. A condition of the permission stated that all works were to be completed in accordance with the approved drawings, one of which showed the demolition of the extension. The council did not, however, impose a condition requiring the demolition of the extension at a specific time, and the appellant argued that the extension was lawful on the basis that he could simply choose to leave the planning permission only partly implemented.

In Trump, permission for an offshore wind farm had been granted subject to a condition which required a design statement but which did not also require the development to be constructed in accordance with the statement. Accordingly, the Trump organisation argued that the aim of the condition was unenforceable and that as a consequence the permission was invalid. The Supreme Court, however, found no reason for a “reasonable reader” to “exclude implication as a technique of interpretation, where it is justified in accordance with the…principles applied to other legal documents”.

The inspector reasoned that demolition of the rear extension was an integral part of the development for which the appellant had sought permission. He found it difficult to imagine any injustice being caused to him by inferring words into the condition which would now secure the removal of that extension. The court ruling cast significant doubt on the extension’s immunity from enforcement action, he decided. Accordingly, he refused to issue a certificate of lawfulness.

Readers will be aware that the Trump decision overturns long-established case law that conditions should be clearly and expressly imposed, with no room for implication (Sevenoaks District Council v First Secretary of State (2004)) and will be alert to the uncertainty which it brings to the planning system.

God save America.

The following DCP chapter is relevant: 4.4112

Outline prior approvals granted

A couple of appeal decisions have been published recently which confirm that it is possible to obtain in principle approvals for changes of use under the GPDO.

In (DCS Number 400-012-283) the council had refused prior approval for the change of use of a barn to a dwelling on the grounds that insufficient information had been provided. The inspector recorded that Schedule 2, Part 3, Class Q indicates that development is permitted consisting of

(a) a change of use of a building and any land within its curtilage from a use as an agricultural building to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order; and (b) building operations reasonably necessary to convert the building referred to in paragraph (a) to a use falling within Class C3 (dwellinghouses) of that Schedule.

The council argued that Class Q (a) and (b) are to be read as one and that physical alterations to the building would need to be made to provide suitable accommodation for the barn to be used as a dwelling. The inspector acknowledged that the building was a pole barn with a dirt floor and was open at one end to allow vehicles in and out. Nevertheless, she pointed out that Class Q.2 (Conditions) indicates that an applicant can apply for the change of use and conversion works at the same time or for the change of use only. An application for prior approval for change of use under Class Q (a) can be made in isolation, she ruled.

In (DCS Number 400-012-284) prior approval had been refused for the change of use of a glasshouse to a flexible commercial use (namely an hotel) under Class R of Part 3, Schedule 2 of the GPDO. The application had been refused by the council because it was not satisfied that the physical works required to implement the change of use were building works reasonably necessary to convert the building. The inspector pointed out, however, that the developers had made it clear that they were seeking only to establish the acceptability in principle of the change of use. Accordingly, she found no reason to refuse the application on the grounds set out by the council, or any other grounds.

Effectively, then, it is possible to gain outline prior approval, just as it is possible to gain outline planning permission. Whilst the utility of such a facility will be obvious to readers, the Blog is not going to resile from querying whether the prior approval regime has made the system any simpler. Has it? Has it really?

The following DCP chapter is relevant: 4.3423

Change of use can occur prior to occupation

In upholding an enforcement notice directed at the conversion of a garage in Essex to a one-bedroom bungalow (DCS Number 400-012-281) an inspector has rejected the appellant’s argument that the alleged breach had not occurred because the building had not actually been occupied for residential purposes.

The inspector recorded that case law has established that it is possible for such a change of use to have commenced prior to actual occupation. He cited Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government and Beesley [2011] in which Lord Mance concluded that “Too much stress, has I think, been placed on the need for ‘actual use’…It is more appropriate to look at the matter in the round and to ask what use the building has or of what use it is”. The inspector explained that it is a matter of fact and degree in conversion cases as to when the change of use occurs, and it is incorrect to simply regard the commencement of actual residential use after the conversion as giving rise to the change of use.

In the case before him there had been an original single garage and an application had been submitted for another single garage to join on to it, purportedly for the storage of the appellant’s vehicles. However, the works undertaken soon made it apparent that what was being created was a new dwelling. On the inspector’s site visit he saw that the building, although unoccupied, had been set out as a one-bedroom bungalow, with windows to the front rather than garage doors, with a parking area to one side of the building, and a small amenity area beyond that. It was clear that the breach of planning control alleged had occurred as a matter of fact, he concluded.

This line of reasoning might be welcomed by enforcement officers, since it is nearly always easier to record physical works than to monitor human behaviour.

The following DCP chapter is relevant: 4.32

GPDO overrides use condition

An inspector dealing with an appeal relating to the residential conversion of offices in Leicestershire has determined that a condition on the original consent limiting the building to B1 use was of no effect (DCS Number 400-012-303).

Planning permission for the office use in the former barn had been granted subject to a condition stating that the premises should be used only for purposes falling within Class B1, to ensure that the use remained compatible with a nearby dwelling. Application for the change of use to a dwelling was subsequently made under the prior approval procedure. The council refused to grant prior approval on the basis that the condition prevented the change to residential use from falling within the scope of the GPDO.

The inspector considered whether Article 3(4) of the GPDO applied. This clause restricts development permitted by the Order which would be contrary to any condition imposed by any planning permission. Referring to case law, the inspector explained that to invoke this Article, the condition must go beyond specifying the development for which permission is being granted and contain something more which explicitly or implicitly restricts development. He reasoned that in the case before him the condition was intended to clarify the nature of the use permitted and the rights conferred by the GPDO were not explicitly withdrawn in the wording of the condition.

In support of this interpretation the inspector cited paragraph 017 of the Planning Practice Guidance which indicates that conditions restricting future use of permitted development rights or changes of use will rarely pass the test of necessity and should only be used in exceptional circumstances. It was clear to him that the scope of the condition was narrowly defined to ensure that the living conditions of a neighbouring residential unit were not harmed by the use approved. This purpose was specific and did not provide clear justification for restricting the application of the new general GPDO rights which the government intended to bring about deregulation in the re-use of buildings.

He concluded that Article 3(4) of the Order was not engaged and that the condition did not prevent the change of use of the building from office to residential being carried out as permitted development.

Who knew?!

The following DCP chapter is relevant: 10.3131

Burden of proof on council in GPDO retail conversions

In allowing the change of use of a music shop and an estate agent’s in north London to two flats under the GPDO (DCS Number 400-012-173) an inspector has highlighted the difference in the level of supporting evidence required between the prior notification procedure and the planning application procedure.

The dispute between the main parties related primarily to the effect on the provision of retail and service provision. The council alleged that the development would harm the vitality of the dispersed shopping parade and noted that no marketing had been provided to demonstrate that the site had been vacant and actively marketed for the previous two years. These criteria related to the terms of a local development management policy. The inspector acknowledged the council’s assertion that the development plan was a material consideration, but ruled that since the appeal did not relate to an application for planning permission the terms of section 38(6) of the Planning and Compulsory Purchase Act 2004 did not apply.

The inspector mused that it is a moot point as to how much weight, if any, should be given to the development plan in the determination of prior approval applications. Regardless of that point, it seemed to him that there is a significant change in emphasis between the aims of the policy and those of the GPDO. In bringing forward permitted change of use the government accepts that such development is acceptable subject to a limited number of criteria being considered, he reasoned, a significant change from the requirements of the local development management policy. Taking account of the thrust of the GPDO it appeared to him that prior approval should only be required where there is evidence to suggest that a proposal would result in an inadequate level of provision. In the case before him no evidence to that effect had been presented by the council. He concluded that the requirements of the policy should not be used to prevent development that would be acceptable, having regard to the specific terms of the GPDO.

The inspector’s conclusion in this case does, of course, chime with the Ministerial Statement of 6 March 2014 which states that the onus will be on the local planning authority to establish that the proposal would have a detrimental impact on the sustainability of a key shopping area or on local services should they wish to refuse the conversion.

The following DCP chapter is relevant: 4.3423

No fees clawback allowed

An inspector dealing with an appeal against the refusal of permission for a curling rink in Berkshire has ruled that an applicant is still entitled to a free go for a subsequent planning application, even where the fee for an earlier application has been refunded under the Planning Guarantee (DCS Number 400-012-199).

The application the subject of the appeal was submitted in September 2015. Having had a previous application for a similar development refused in December 2014, the appellant was of the view that he was entitled to a free go, and consequently did not submit a fee. The council, on the other hand, took the view that the application did attract a fee since the fee paid in relation to the earlier application had been refunded under the Planning Guarantee. In the absence of any fee, it declined to register or validate the application.

The inspector recorded that, after careful consideration, the Planning Inspectorate had arrived at the view that the fact that the fee had been subsequently returned by the council under the Planning Guarantee did not preclude a free go for the subsequent application, which was for a similar form of development on the same site. Having found that no fee was payable, the application was therefore deemed to have been valid when it was initially submitted to the council and thus, the applicant had a right of appeal against non-determination and the appeal proceeded accordingly.

This seems right. Otherwise, the value both of the penalty to the council for not dealing with the planning application in a timely manner and of the compensation to the applicant for having suffered a delayed decision is negated.

Planning authorities might wish to alert their validation staff.

The following DCP chapter is relevant: 5.152