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PPS7 Annex A – gone but not forgotten

A recently decided appeal relating to a proposed farm worker’s dwelling in the county of Durham (DCS Number 200-005-060) brings us back to a Blog from February Nearly four years on and deleted guidance is still in use. In that Blog we noted inspectors’ unwillingness to let go of Annex A to PPS7 notwithstanding that this guidance has been deleted. In the Durham appeal the inspector noted that no accounts had been submitted to confirm the viability of the farm business. The appellant argued, however, that the Embleton Parish Council & Anor, R v Gaston [2013] case concluded that there is no need to produce financial justification for a farm dwelling. The inspector acknowledged that this judgment highlights that the test under paragraph 55 of the NPPF is different from that under Annex A of PPS7, in that it simply requires a judgement of whether the proposed agricultural enterprise has an essential need for a worker to live there or not. Nevertheless, she recorded that there is no indication that in making that judgement, the decision-maker does not need to take any account of financial evidence, and in fact in the Embleton case financial evidence had been submitted by various parties to the decision-maker.

Clearly, Annex A is still sorely missed by inspectors. Can’t we just let them have it back?

The following DCP chapter is relevant: 9.331

One man’s meat….

Following on from the discussion of matters of taste in Living the countryside idyll here is an inspector who is not imposing a particular taste, much as local residents might have wished him to.

The inspector raised no objection to the design of six three-storey holiday homes in Cornwall notwithstanding the council’s contention that the development would not look out of place in a film set for The Lord of the Rings (DCS Number 400-011-593). The proposal involved the redevelopment of an existing holiday let with six pods which, the inspector reported, loosely resembled windmills on raised plinths. The scheme also included wind turbines on the conical roofs of each pod. The design and use of external materials would be in striking contrast to the nearby buildings, the inspector observed. However, although some local residents described the village as a pretty Cornish village, the inspector took the view that there was nothing surrounding the site having any architectural significance or distinctiveness which would set an appropriate context for the proposal. The design of the pods was distinctive and whilst unusual, was not unattractive, he held. He concluded that it would meet the requirement in paragraph 17 [4] of the NPPF for high quality design.

The following DCP chapter is relevant: 9.537 

Living the countryside idyll

With the current vogue for all things vintage, handmade and homely it is no surprise to see a proposal for a new country cottage. However, a cottage style residence in a ‘traditional’ orchard in Warwickshire would appear incongruous in a village conservation area, an inspector decided (DCS Number 400-011-575).

The inspector considered that the introduction of a dwelling of essentially suburban appearance, notwithstanding genuflections to an agricultural lifestyle of a bygone age, would appear as a random insertion in the rural fringe of the conservation area and would neither preserve its character nor its appearance. The tidying up of the unkempt rural land might conceivably improve its appearance, if formality and tidiness were necessarily considered to be more desirable, he opined, but its essential character would not be enhanced. On the contrary, he considered that the somewhat suburban dwelling set within surrounding vegetation of contrived rural character would fail to overcome the artificiality of the proposed development in context, leading to an impression of incongruity.  The proposal could not be said to make a positive contribution to local character and distinctiveness, contrary to the exhortation of the NPPF, he concluded.

Whilst siding with the inspector in not wishing to see the Disneyfication of the countryside one could not blame the appellant, on reading this decision, for pointing to paragraph 60 of the NPPF which states “Planning … decisions should not attempt to impose architectural styles or particular tastes…” A new country cottage might not be to everyone’s taste but when thwarting dreams of living the rural idyll we need to reflect very carefully about whether it is justified in the context of the development plan and other material considerations, which must include full consideration of paragraph 60 of the NPPF.

The following DCP chapter is relevant: 9.1326

Housing land supply – you’re on your own

An inspector has allowed 30 houses outside a village in Cambridgeshire despite the council having an agreement with a neighbouring authority in respect of housing land supply (DCS Number 400-011-553).

Whilst acknowledging that it could not deliver a five-year supply of housing land, the council indicated that if looked at in the wider area, a five-year housing land supply could be shown, and pointed to a memorandum of understanding between the two councils. The inspector confirmed, however, that paragraph 47 of the NPPF is directed to each local planning authority, and it was not a case where a joint local plan had been submitted for consideration. Therefore, there was a requirement that each local planning authority individually needed to show a five-year supply of housing land.

Just to be clear.

The following DCP chapter is relevant: 7.131

Obesity and the origins of planning

Retrospective permission for a pizza and kebab takeaway in Gateshead was rejected, an inspector supporting the council’s endeavours to address obesity in its area (DCS Number 400-011-493).

The inspector noted that paragraph 7 of the NPPF explains the need for the planning system to support strong, vibrant and healthy communities by creating a high quality built environment that reflects the community’s needs and supports its health, social and cultural wellbeing. Paragraph 69 reiterates that the planning system can play an important role in creating healthy, inclusive communities. In line with this objective, a core strategy policy stated that the wellbeing and health of communities would be maintained and improved by controlling the location of, and access to, unhealthy eating outlets.

In a footnote the inspector acknowledged that the appellant was critical of this policy, arguing that it was outside the ambit of valid planning considerations. He pointed out, however, that  an important precursor to the first town planning Act in this country (the Housing, Town Planning, etc. Act 1909) was the Public Health Act of 1875. So, the planning and environment legislation that exists today has its origins in 19th century concerns about the health and wellbeing of the people.

A survey undertaken in 2012 found that 61 per cent of people in Gateshead were either overweight or obese, the inspector noted, and, according to the National Child Measurement Programme the prevalence of childhood obesity for 10 and 11 year olds in Gateshead was above the national average.

Recognising that the council was seeking to improve the wellbeing and health of residents by ensuring that new sources of unhealthy eating were carefully controlled, the establishment of the takeaway would run counter to those aims and the specific provisions of an adopted local policy, the inspector concluded.

This case reminds us of the political nature of planning and as always there is a difference of opinion. On the one hand there are those who object to government interference and on the other there are those who consider that the regulation of threats to our wellbeing is one of the functions of government. The inspector’s placing of this appeal case in an historical context provides a very useful perspective. He’s right, of course.

The following DCP chapter is relevant: 16.2321

Don’t try this at home

An inspector has upheld an enforcement notice requiring the demolition of an outbuilding used as three flats at a property in west London, determining that a lawful development certificate for the development was not genuine (DCS Number 200-004-993).

The story begins in 2012 when the council granted a LDC for a single storey detached garden outbuilding for use as a gym/games room/storage area. The appellant explained that he was later handed the decision notice that purported to grant planning permission for the use of the outbuilding as three self-contained flats by a contractor who claimed that he knew someone at the council who could obtain planning permission for that use. The appellant was not able to provide a date on which he was handed the decision notice, although he said that he did seek to verify the validity of the notice by reference to the council’s website, and provided a screenshot of the website showing the purported decision for use of the outbuilding as three flats.

The council explained that on 17 January 2014 a number of unauthorised changes were made to the records relating to the LDC for the gym. These changes were the subject of an investigation undertaken by the council in relation to a number of similar unauthorised changes to the planning records alleged to be made or potentially made by a former council employee. The council gave evidence to the inquiry to confirm that the investigation had concluded, and that there was sufficient reliable evidence to show that the purported decision notices were fraudulent. The inspector reasoned that the appellant could only have been handed the decision notice after 17 January 2014 which in turn cast doubt on the appellant’s recollection that he relied upon the information on the council’s website in deciding to construct the outbuilding. In addition, aerial photographs provided by the council showed the site in July 2013, at which time the outbuilding appeared to be either complete or nearing completion. Furthermore, unlike the application that resulted in the LDC being granted for the outbuilding for use as a gym/games room/storage area, there was no documentary record of an application for the use of the outbuilding as three self-contained flats. Similarly, there was no record of such an application appearing on the council’s weekly list. The inspector therefore did not accept the appellant’s claim that he was misled by the information of the council’s website, which could only have appeared after January 2014. He upheld the enforcement notice, requiring the demolition of the outbuilding in its entirety.

This is NOT the way to beat the system.

The following DCP chapter is relevant: 6.33

Cemetery firm digs itself out of a hole

A cemetery company in Kent has succeeded in gaining a lawful development certificate confirming that foundation trenches have implemented a planning permission for a chapel and maintenance building, despite their being dug in the wrong place (DCS Number 400-011-499).

Permission had been granted in 2010 and the appellants sought to keep the permission alive by digging trenches for the maintenance building. The inspector recorded that, unfortunately, the trenches were not dug in precisely the right position and, whilst there was some overlap between the foundations as they should have been dug and the foundations as in fact they were dug, this was relatively slight. This prompted the council to claim that the extent of trench that could be argued to represent a start to the 2010 permission was so slight as to be de minimis and therefore failed to constitute a material operation.

The inspector noted that it was the appellants who brought the error to the council’s attention. He asked himself whether, if the building had been completed for more than four years but had been subject to conditions which the council then wished to enforce, could the appellant have argued that this was not the building for which permission had been granted? Bearing in mind that there was an overlap between the intended site of the building, and the actual position, and that the size and shape of the building was the same, it seemed unlikely.

Moreover, the inspector considered it unlikely that the conclusion would be reached that what had been done was materially different from that which was permitted. In addition, he noted that Section 56(2) of the Act indicates that development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out. Section 56(4) indicates that “material operation” means, amongst other things, the digging of a trench which is to contain the foundations, or part of the foundations, of a building.

The inspector issued a lawful development certificate confirming that works had been carried out to begin the development. Whilst the company has dug itself out of this hole it is to be hoped that its grave-digging skills are more accurate.

The following DCP chapter is relevant: 6.341

“What is this life if, full of care,

We have no time to stand and stare?”

The well-read readers of this Blog will recognise these lines from ‘Leisure’ by W H Davies. An inspector deciding an appeal relating to a wakeboarding facility in Cambridgeshire seems to have a different understanding of the term ‘leisure’, however, (DCS Number 200-004-995). There was much discussion at the hearing regarding the issue of need for the development, the inspector recorded. This arose from Paragraph 28 of the NPPF which supports: rural leisure developments that benefit businesses, communities and visitors and respect the countryside; and the provision of tourist and visitor facilities where identified needs are not met by existing facilities in rural service centres. Accordingly, the question then arose as to whether the development would constitute a ‘leisure development’ or ‘visitor facility’.

The inspector took the view that the word leisure embodies the idea of enjoyment and physical activity, for example, a leisure centre. The Oxford dictionary, he noted, defines a ‘visitor’ as someone who is visiting a place or person. He thought that it does not invoke the same sense of physical activity as leisure. He was therefore satisfied that for the purposes of Paragraph 28 of the NPPF, the proposal would constitute a leisure development. It followed that there was no requirement to demonstrate either a need or demand for the development.

Leisure doesn’t involve standing and staring, then.

The following DCP chapter is relevant: 18.3

Shakespeare 400

As we all know, 2016 marks the 400-year anniversary of the death of William Shakespeare. Ever topical, the DCP Blog is delighted to be able to report an appeal decision in which The Bard gets a mention (DCS Number 400-011-383). This case concerns the residential conversion and extension of a listed timber-framed barn in Stratford-upon-Avon. The property was originally a house, reputed to have been owned by Richard Shakespeare, and possibly the birthplace of William Shakespeare’s father and uncle. The appeal proposal involved adding a large, two-storey extension that would increase the volume of the barn by over 80 per cent. The inspector judged that an extension of such a size would be out of keeping with the existing size and scale of the listed barn and dominate its appearance to an unreasonable extent. He considered that the barn was a significant local heritage asset not only because of its considerable age and traditional appearance but also as a result of its possible historical associations with William Shakespeare’s family. The public benefits of the scheme, which included the repair of the deteriorating barn, were outweighed by the harm, he concluded.

Assuming there is a degree of substance to the reputed association with the Shakespeare family, this really isn’t the year to be contemplating a bit of an extension to the birthplace of Shakespeare’s dad.

The following DCP chapter is relevant: 27.3

Beds in sheds – removal of bathroom facilities

Planning authorities’ preference to see bathrooms and kitchens removed from unauthorised dwellings is easily understood; without these facilities it is unlikely that occupation will continue. However, an inspector dealing with an appeal against an enforcement notice directed at the unauthorised use of an outbuilding in the garden of a house in Oxford as a separate dwelling has deleted the requirement to remove its bathroom facilities as it would exceed what was necessary to remedy the breach of planning control (DCS Number 400-011-382).

The inspector pointed out that bathroom facilities are not uncommon features in ancillary or incidental outbuildings and there was nothing to doubt the appellant’s contention that the bathroom facilities were provided long before the more recent unauthorised change of use to use as a single dwellinghouse. The bathroom facilities would be lawful if the building remained in use for purposes ancillary or incidental to the main dwelling.

The inspector recorded that case law establishes that where a notice is issued alleging a material change of use, and the notice requires that certain works be removed, those works must have been integral to or part and parcel of the making of the material change of use.

He determined that the council’s concern about a future resumption of the breach did not provide a legitimate reason for requiring the removal of the bathroom facilities since Section 181 of the Act states that compliance with an enforcement notice shall not discharge the notice. The council could therefore take immediate enforcement action to prosecute the notice if the unauthorised use were to later resume.

It strikes us that this is one of those situations where effective enforcement relies on the monitoring of human behaviour rather than the recording of physical works (not unlike the situation in Outside play at nursery – whether condition enforceable); a difficult, if not impossible task. Given that ineffective enforcement is one of the best ways to undermine public confidence in the planning system there must be a better way. Sorry to say it, but maybe this needs amended legislation.    

The following DCP chapter is relevant: 10.2