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What a waste

What a waste of human endeavour. An inspector has upheld an enforcement notice requiring the removal of a pair of gates over 1m in height and 2.5m from the highway at a house in Surrey, finding that planning permission was required (DCS Number 400-012-202).

As we all know, the GPDO used to say that any gate, fence, wall or means of enclosure over one metre in height abutting a highway required permission. Clever types came along and circumvented the legislation by simply moving the gate,…means of enclosure away from the highway a smidge. So, the wording was amended to refer to a gate, fence, wall or means of enclosure erected or constructed adjacent to a highway. The trouble is that no-one has ever defined what exactly ‘adjacent to a highway’ means and it’s about time that someone did. The appeal record shows that ‘adjacent to a highway’ might be 1m, 1.5m, 2.5m from the highway….

This cannot be a situation where things can be so finely balanced that it must remain a matter of fact and degree. If, as a profession, we could decide on a distance and incorporate it into a revised version of the GPDO we could avoid needless enforcement action and needless appeals. Then, as a society, we could apply our minds to something a bit more useful, such as finding a cure for cancer or putting an end to world hunger. In fact, the Blog can help out with this one. Two metres. There. Job done. Now let’s all move on.

The following DCP chapter is relevant: 4.3422

Avoiding affordable housing provision

In deciding an appeal against the refusal of outline permission for a development of eight houses in Essex an inspector has concluded that there is no need to make provision for affordable housing despite the council’s claim that the floorspace of the dwellings is likely to be over 1000sqm (DCS Number 400-012-163).

The Planning Policy Guidance states that contributions should not be sought from developments of 10 units or less, and which have a maximum combined gross floorspace of no more than 1000 sqm, the inspector recorded. He reasoned that the application had been submitted in outline with scale and appearance as reserved matters and the application form stated that there would be six two-bedroom and two three-bedroom dwellings. As such he had no evidence to lead him to the conclusion that the dwellings would be overly large and that their combined floorspace would be over 1000 sqm. He concluded that it was not necessary for the proposed development to make a contribution to the provision of affordable housing.

In this case the appeal was dismissed, the inspector finding substantial harm to the character and appearance of the area and that further work was required on flood risk assessment. If these matters had been found acceptable, however, and the council was right in its anticipation that the proposed floorspace at reserved matters stage was over 1000 sqm, it seems that the developer would have gained permission without having to make a contribution towards affordable housing, contrary to the objectives of the PPG.

Is this example a template for avoiding affordable housing provision on schemes which are a bit over the 1000 sqm threshold?

The following DCP chapter is relevant: 4.6244

It can happen

Perhaps it isn’t widely understood that it can happen since it doesn’t happen very often. However, sometimes it does happen; an inspector will delete another inspector’s condition. Appeal case DCS Number 400-012-162 illustrates the point.

This case concerns a roof extension to a property in southwest London to provide two flats, planning permission for which had been gained at appeal. The original inspector had attached a condition to the permission (DCS Number 400-012-174) requiring the development to be car-free. The subsequent inspector, however, was persuaded that a parking survey submitted by the appellants provided clear evidence demonstrating a low level of parking stress and that additional car parking for two vehicles could be acceptably accommodated in the surrounding area. Accordingly, she deleted the condition.

The following DCP chapter is relevant: 4.416

No I never

In quashing an enforcement notice directed at the alleged use of a terrace house in Greater Manchester as a teaching centre and place of worship an inspector has made an interesting point about where the burden of proof lies (DCS Number 400-012-160).

The council maintained that “…it is well accepted law that in enforcement appeals the burden of proof lies with the appellant”. This might be the case, as a generality, the inspector acknowledged. He reasoned, however, that it is difficult to prove that a use of land has not occurred, because if it hasn’t then there will be no evidence. He explained that, in fact, the burden of proof applies mainly where an appellant accepts that an unauthorised use has occurred and is attempting, in a ground (d) appeal, to show that it has subsisted for a sufficient period of time to have gained immunity from enforcement action. In a ground (b) appeal the onus is on the council to show that the alleged unauthorised use of a property has occurred and has, at the time of issue of the enforcement notice, replaced the lawful use and is the last known use of the property.

The inspector found that the council had not adduced sufficient evidence to justify a conclusion that the alleged unauthorised use of the appeal property as a teaching centre and a place of worship had occurred, had replaced the lawful use as a dwellinghouse, and was the last known use of the property. Accordingly, he decided that the ground (b) appeal succeeded and he quashed the enforcement notice.

Planning authorities might wish to review their enforcement protocols.

The following DCP chapter is relevant: 4.5312

Is that legal?

We are not at all sure about a south Devon council’s approach to the collection of a payment to offset harm to a Special Area of Conservation (DCS Number 400-012-111).

At appeal an inspector noted that the council had sought a financial contribution towards measures to mitigate the effect of recreational pressure arising from an additional dwelling on the South Hams SAC. The financial contribution had been paid direct to the council rather than being secured by an obligation. The inspector had some concerns that there was no legal guarantee that the money would be spent on the required mitigation. However, the council routinely sought such payments in this manner, he recorded, and had devised a form to accommodate such arrangements, publicised on its website, which the appellants had completed when making the relevant payment. The council’s solicitor said that the council was under a moral obligation to ensure that the monies paid were used for the purpose for which they were paid and to be in a position to be able to account to the payee as to what the money had been expended on. Having regard to the relatively small sum involved, the inspector considered that there was sufficient assurance that the mitigation would be honoured.

The Planning Policy Guidance states that “To ensure transparency local planning authorities are encouraged to make publically available information as to what planning obligation contributions are received and how these contributions are used.” Provided that this advice is applied equally to cheque payments and bank transfers this practice might be seen as a helpful and pragmatic approach to the collection of financial contributions. Our concern, however, is that there is clearly scope for transparency to be compromised.

What is readers’ experience of this practice? Is it widespread?

The following DCP chapter is relevant: 4.6

This area has really gone downhill

A snippet from an inspector dealing with an appeal against an enforcement notice directed at a house in multiple occupation in a student area of a Sussex town (DCS Number 400-012-129):

In the adjacent road I saw a front door painted in pop art style and just off the main road a retail shed advertised as ‘Shabitat’ selling second hand furniture. Whilst it is not known whether these are directly attributable to a concentration of HMO uses, it is my view that they are suggestive of the changes and harm that is caused to the character and appearance of the area where there is a poor mix and balance of HMO uses to single family dwellings.

Pop art? Secondhand furniture? Whatever next.

The following DCP chapter is relevant: 11.7

Development thwarted by narrow access? Try this.

Anyone who has had their hopes of achieving planning permission frustrated only due to fears about traffic safety along a narrow access is likely to be interested in a solution put forward in a Worcestershire appeal against the refusal of the conversion of a pub to seven flats and a dwelling (DCS Number 400-012-093).

The access to the pub car park was through a narrow archway. An earlier appeal (DCS Number 100-058-344) had been dismissed, that inspector concluding that the use of the access for the residential scheme would give rise to the significant possibility of cars leaving the site meeting those that were entering, resulting in vehicles having to reverse onto the road or wait on the road while a car emerged. This would jeopardise highway safety to an unacceptable degree, he decided.

The appellants at the later appeal proposed a system based on an electronic bollard and gates whose operation would be synchronized to ensure that vehicles would not meet along the short length of the access. The inspector was satisfied that if the system operated as designed it would ensure that cars would not meet along the access, and there would therefore be no need for vehicles to reverse onto the highway. He acknowledged that, although the gates would be left open for most of the time, their closure would prevent vehicles entering the site from the road. However, he reasoned that such a coincidence was unlikely to occur regularly, and even if it did, whilst a car waiting for a short time on the road for the gates to open might cause very periodical localised congestion, it would be unlikely to endanger highway safety.

Always worth a try.

The following DCP chapter is relevant: 8.1333

Back in the real world

The following snippet from an appeal against the refusal of outline permission for a bungalow in rural Hampshire brought a wry smile (DCS Number 400-011-996). The inspector recorded that at the time when the appeal was submitted there was no dispute between the parties that the proposal would require a contribution towards affordable housing in accordance with the requirements of saved core strategy policies. However, the PPG had since been amended to state that contributions should not be sought from developments of 10 units or less, or 5 in designated rural areas, which included the case before her. She continued:

“I have received representation from the Council that, in their opinion, due to the urgent need for affordable housing in the District and the important role that smaller sites have in providing affordable housing in the District greater weight should be given to the Council’s adopted development plan policy for the provision of affordable housing than the weight to be given to Government policy on the thresholds for infrastructure contributions.”

Well, maybe. In a parallel universe….

The inspector was able to sidestep the debate, concluding that even if she were to accept that the requirement for affordable housing in the district outweighed the amended policy within the PPG the severe harm to the character and appearance of the area would outweigh the limited benefits associated with the contribution received towards affordable housing.

The following DCP chapter is relevant: 7.33

Case law on incidental outbuildings

An inspector dealing with an appeal against the refusal of an LDC for two incidental outbuildings in the garden of a house in west London has very neatly set out the case law on the subject which may be helpful to cut out and keep (DCS Number 400-011-972).

The council argued that the combined floorspace of the proposed outbuildings was too large to be required for purposes incidental to a dwellinghouse. The inspector explained that:

There is no statutory definition of the word “incidental”. However, case law provides authority for how this should be interpreted by decision makers. These authorities indicate that games rooms, play rooms and utility areas are capable of being a type of use that is incidental to the enjoyment of a dwellinghouse. In the leading case of Emin v SSE [1989] it was held that it was wrong to conclude that an outbuilding could not be said to be required for a use reasonably incidental to the enjoyment of a dwellinghouse as such because it would provide more accommodation for secondary activities than the dwelling provided for primary activities. Nevertheless, the test must retain an element of objective reasonableness and should not be based on the unrestrained whim of an occupier: Wallington v SoS for Wales [1990]; Holding v FSS [2004]; Croydon LBC v Gladden [1994]. On the other hand, a hard objective test should not be imposed to frustrate the reasonable aspirations of a particular owner or occupier so long as they are sensibly related to the enjoyment of the dwelling. These judgments and the findings therein serve to illustrate that with each case it is a matter of fact and degree based on the particular circumstances: Peche d’or Investments v SSE [1996].

Accordingly, the inspector concluded that each case is fact sensitive and that the right approach based on case law is to apply an element of objective reasonableness. In the case before him he found, having regard to the particular facts and circumstances, that the proposed development fell within the definition of buildings required for purposes incidental to the enjoyment of a dwellinghouse. Accordingly, it was permitted development by virtue of the rights conveyed by Class E of Part 1 of Schedule 2 of the GPDO 2015.

The following DCP chapter is relevant: 4.3445

No kidding, Sherlock

The parties at appeals relating to residential development will often press to argue about whether or not the planning authority can show a five-year housing land supply. In relation to an appeal for up to 61 dwellings in Derbyshire the inspector pointed out, however, that it was not for him to carry out a forensic analysis of the housing statistics (DCS Number 200-005-175). In support of this stance he referred to the Planning Practice Guidance which advises that up-to-date housing requirements and the deliverability of sites to meet a five-year supply will have been thoroughly considered and examined prior to adoption, in a way that cannot be replicated in the course of determining individual applications or appeals where only the appellant’s evidence is likely to be presented to contest an authority’s position. Similarly, the Court of Appeal in St Albans City and District Council v Hunston Properties Ltd and Secretary of State for Communities and Local Government, [2013]  found that, “It is not for an inspector on a Section 78 appeal to seek to carry out some sort of local plan process as part of determining an appeal, so as to arrive at a constrained housing requirement figure. An inspector in that situation is not in a position to carry out such an exercise in a proper fashion, since it is impossible for any rounded assessment similar to the local plan process to be done. That process is an elaborate one involving many parties who are not present at or involved in the Section 78 appeal.”

The inspector’s approach in the case before him was to note that the appellant’s evidence was untested whereas the council’s approach had been thoroughly tested in local plan examinations. He concluded that he had little reason to doubt the council’s position that a housing land supply in excess of five years existed.

The following DCP chapter is relevant: 7.131