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Measuring floorspace for affordable housing contributions

In granting permission for ten flats in north London an inspector has overruled the council on the method of measurement of floorspace when assessing liability for affordable housing contributions (DCS Number 400-012-587).

The Written Ministerial Statement of 28 November 2014 states that “for sites of 10 units or less and which have a maximum combined gross floor space of 1,000 square metres, affordable housing and tariff style contributions should not be sought”, the inspector recorded. The council contended that the floorspace delivered by the proposal would be 1020 square metres and it should therefore make a contribution towards affordable housing. The inspector noted, however, that this was an external measurement. He pointed out that in Technical housing standards – the nationally described space standard the Gross Internal Area (GIA) of a building is used as a measurement of floorspace. The GIA does not include the thickness of internal walls within its measurement. It followed, he reasoned, that it is reasonable to accept the GIA as a measurement of the actual usable floorspace that a proposal would deliver. In the case before him the GIA would comprise 854 square metres.

The proposal would fall within the ambit of national policy as expressed in the WMS, the inspector concluded, and would not have to make provision for affordable housing contributions.

The following DCP chapter is relevant: 7.33

Hiding in plain sight

An inspector determining an appeal against the refusal of a certificate of lawfulness for the residential use of a single storey flat-roofed modular building in Cambridgeshire  (DCS Number 200-005-414) has a nice turn of phrase.

The inspector identified one of the main issues as being whether there had been positive deception of the local planning authority such that a principle of public policy, namely that a person should not benefit from their own wrong, was invoked (Welwyn Hatfield v SSCLG & Beesley [2011]). Noting that the building was big, white and conspicuous, and that it could be seen from the A10, he found it difficult to be sympathetic to the council’s claim that it had been positively deceived by the appellant’s action. “Short of putting a Belisha beacon on top of the modular building”, it was difficult to see how the appellant could have drawn more attention to its existence, he remarked.

The following DCP chapter is relevant: 10.1516

It’s not fair

Readers will be aware of the advice contained in the PPG which states that a negatively worded condition which prevents development proceeding until an obligation is entered into can be appropriate in exceptional circumstances and where it relates to one of the matters under consideration. In the appeal case reported in the Blog article Where there’s a will… the inspector decided that since the only obstacle which stood in the way of the proposed conversion of an office to a house under the GPDO proceeding was the need for an obligation to prevent future occupiers applying for or being entitled to a residents’ parking permit he was satisfied that such a condition was appropriate.

In (DCS Number 400-012-610), however, the inspector decided that the conversion of a shop in southwest London to two flats under the GPDO could not proceed in the absence of a legal agreement to prevent parking on the street from taking place. She observed that the area had a high demand for parking spaces and suffered from parking stress. The appellant stated that he would accept the imposition of a condition to ensure that it would be a car permit free development. The inspector noted, however, that the PPG states 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 imposed. She did not consider that the provision of only two flats in this location would be a complex and strategically important development.

These cases relate to development in neighbouring boroughs. The Blog is unconvinced that the decisions represent consistency in decision-making. If decision-making isn’t consistent it’s not fair.

The following DCP chapter is relevant: 10.312

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