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A plea for plain English

What does ‘less than substantial harm’ mean to the ordinary man in the street? Not significant harm, maybe. What is indicated if ‘less than substantial harm’ is found to the setting of a heritage asset? That the proposed development is likely to be found acceptable, maybe. No and no.

A solar farm was proposed within the setting of both Glastonbury Tor and a farmhouse once used by the abbots (DCS Number 200-004-497). An inspector found that the proposal would cause ‘less than substantial harm’ to the setting of the heritage assets. In arriving at his decision the inspector considered the benefits of the scheme including the conversion of barns adjacent to the farmhouse for accommodation for retired farmers, a project which he found to have considerable merit. Nevertheless, he concluded that the benefits would not justify the harm the development would cause to the heritage assets.

Clearly, read in the context of Paragraphs 133 and 134 of the NPPF the phrase ‘less than substantial harm’ begins to make sense. Substantial harm to or total loss of a heritage asset is likely to be refused, unless exceptional circumstances apply. Less than substantial harm will require a balancing exercise to be undertaken. Writing for the losing party, the inspector helpfully explained that the harm would be at the top end of harm in the ‘less than substantial harm’ category.

In a situation of this nature an aggrieved appellant might make greater sense of the inspector’s reasoning if he were to consult the NPPF. Or he might not consult the NPPF and remain an aggrieved appellant. If only plain English were used in the first place the outcome would be far less confusing and perplexing for the ordinary man in the street.

The following DCP chapter is relevant: 4.37

It wasn’t like this in the old days

In the old days when life was simple a householder could start digging the foundations for his extension whilst waiting for written confirmation from the council that it was pd. Not now.

In (DCS Number 400-010-192) the appellant made a prior approval application to the council in respect of a 6m rear extension. Then he started digging. The inspector recorded that sub-paragraph (10) of Schedule 2, Part 1, Paragraph A.4 to the GPDO states:

(10) The development must not begin before the occurrence of one of the following— (a) the receipt by the developer from the local planning authority of a written notice that their prior approval is not required; (b) the receipt by the developer from the local planning authority of a written notice giving their prior approval; or (c) the expiry of 42 days following the date on which the information referred to in sub-paragraph (2) was received by the local planning authority without the local planning authority notifying the developer as to whether prior approval is given or refused.

The inspector reasoned that this sub-paragraph is written in absolute terms through the use of the word ‘must’. A failure to comply with any of the criteria therefore means that the works in question are no longer permitted development. Since the works had commenced prior to 42 days of the application being made and there was no earlier notice that prior approval was not required or had been granted, they were not permitted development.

Of course, starting a development without the benefit of any written confirmation as to its lawfulness was never for the risk averse, but grown-ups were allowed to make a judgement according to their circumstances, in contrast with the current ‘Nanny knows best’ approach. Maybe ‘must’ could be replaced with ‘should’.

The following DCP chapter is relevant: 4.3421

A note about record-keeping

A lawful development certificate for a barn conversion in Sussex was issued after the council was unable to provide proof of posting of its refusal notice (DCS Number 400-010-103).

An application was made for the conversion under the prior approval procedure on 10 July 2014.

The inspector noted that paragraph N(9) of Class N, Part 3 of the GPDO provides that the development shall not be begun before the occurrence of one of three events. These are receipt of written notice from the local planning authority that prior approval is not required, or that it is given, or “the expiration of 56 days following the date on which the application was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused”.

The council asserted that it posted a refusal notice to the appellant on 29 August and that it placed the information on its website on 1 September, within the 56-day period. The appellant, on the other hand, was adamant that no notice or decision letter was ever received.  

The inspector ruled that it was not for the appellant to go searching for a decision on the council’s website. It was for the council to notify him. Unfortunately for the council it could not provide any evidence of actual posting but relied on the assumption that normal procedures within the department would have been followed leading to the sending of the decision letter. This meant that the council could no longer require the appellant to seek prior approval, the inspector determined. Accordingly, he issued a certificate of lawfulness for the barn conversion.

The moral of the tale – get proof of posting slips and keep them somewhere safe.

The following DCP chapter is relevant: 4.3423

Backland and tandem development: this SPG might be worth a look

The effect in terms of noise for residents at existing properties where tandem and backland development is proposed can be difficult to judge. In a case concerning a proposal for seven to eight dwellings on a backland site in Leicestershire (DCS Number 400-010-162), however, the inspector had the assistance of supplementary planning guidance.  

It was proposed that a new access road would be constructed which would run between two existing properties. The inspector considered that the occupants of the properties either side of the access road were likely to experience unacceptable levels of noise and disturbance associated with vehicular movements passing in close proximity to their windows. This would be compounded by the fact that the access road would narrow to single width as it passed between the two properties which effectively created a pinch point. Consequently, he reasoned,  there was a likelihood that a degree of manoeuvring would occur as vehicles entering and exiting the site had to wait for each other to pass.

In support of his conclusion, the inspector referred to supplementary planning guidance adopted by the council on backland and tandem developments. This set out minimum separation distances between an access serving a backland site and the elevations of existing properties. In particular, it stated that an access should be a minimum of 3m from the side or front elevation windows and doors to ancillary rooms and 5m from any side or front elevation windows and doors to main living rooms. In the case before him the proposal did not meet the minimum 3m as set out in the SPG in respect of both properties. The development would have an unacceptable effect on the living conditions of the occupants of the existing properties with regard to noise and disturbance, he decided.

The following DCP chapter is relevant: 8.1

Nearly four years on and deleted guidance is still in use

Readers will recall that the NPPF swept away a raft of national guidance on 27 March 2012. Nevertheless, a particular section of PPS 7 is still in regular use. The inspector in (DCS Number 200-004-489) explains why:

‘The Framework itself contains no guidance on how to determine essential need for a rural worker to live at or near a site. However, although no longer government policy, Annex A of Planning Policy Statement 7: Sustainable Development in Rural Areas (PPS7), sets out a useful, tried and tested methodology for assessing whether there is an essential need for a rural worker’s dwelling on a holding. I see no reason to discount it as a useful tool in seeking to establish whether a permanent dwelling is justified.’

Inspectors are clearly not willing to give up this methodology, as a search of the Compass database will reveal, particularly, perhaps, as without it they are left with a policy vacuum.  Interestingly, it appears to stand alone in that it shows no sign of falling out of use over the passage of time. Exceptionally, perhaps it is time for it to be formally reintroduced to national guidance.

The following DCP chapter is relevant: 9.331

A case of interpretation

The following case (DCS Number 400-010-134) is interesting because it concerns a housing policy which was drafted in such a way that it was able to accommodate a change in housing need which has occurred over time.

We are, again, in the London Borough of Kensington and Chelsea. The appellant sought permission to convert two flats (one two-bedroom flat and one one-bedroom flat) to one three-bedroom flat. A local plan policy stated that development would be resisted which resulted in the net loss of five or more residential units. The appellant argued that his development was not contrary to this criterion as only one unit would be lost. The background was that prior to 2014 the council had taken the view that whilst amalgamations that resulted in the loss of five or more residential units required planning permission, the loss of four units or fewer normally did not. However, in August 2014 the council changed its stance in recognition of its increasing difficulties in meeting its housing targets, taking the view that the loss of any residential unit through amalgamation would require planning permission. Notwithstanding this differing assessment of housing pressures and when planning permission might be needed, the change was not reflected in any formal amendment to the policies of the adopted development plan, the inspector noted. Nevertheless, he was not convinced that the policy necessarily implied that the council would not resist developments which resulted in the loss of less than five residential units. He noted that whilst it was absolutely clear as to larger amalgamations, it was silent on those which resulted in a loss of four units or less. He concluded that the personal benefits to the appellant were in themselves insufficient to outweigh the public policy disadvantages of the loss of a unit of residential accommodation.  

Policy planners might be able to think of similarly drafted policies in their own local plans.

The following DCP chapter is relevant: 11.1

A reminder about residential barn conversions under Part 3 of the GPDO

A Dorset council ran into trouble after refusing a prior approval application for a barn conversion (DCS Number 400-010-112). The council asserted that the building was not being used solely for agriculture as part of an established agricultural unit on 20 March 2013 and thus failed to meet the criterion set out in paragraph Q.1(a)(i) of the GPDO. The inspector pointed to paragraph Q.1(a)(ii), however, which meant that if the building was not actively in use on 20 March 2013, but agriculture was the nevertheless the last active sole use, then the change of use would comply with the requirements of the GPDO. He found no evidence to suggest that the last active sole use was not agriculture.

Just to compound things, the council went on to decide that the change of use would not be permitted development on account of the location of the building. The inspector recognised that until the changes to the PPG in March 2015 there was uncertainty as to whether the location of a building should be taken into account in determining a prior approval. He accepted that when the decision was made in December 2014 it was not unreasonable to consider the locational aspects of the proposal. However, the March 2015 changes made clear that the fact that the site was in a location where the local planning authority would not normally grant planning permission for a new dwelling was no longer a sufficient reason for refusing prior approval. Not to review its position amounted to unreasonable behaviour.

Costs were awarded against the council on both grounds.

The following DCP chapter is relevant: 4.3423

Code for Sustainable Homes condition deleted

In a case involving the replacement of a bungalow with a new dwelling in Berkshire (DCS Number 400-009-897) the parties all agreed that a condition requiring the house to meet Level 4 of the Code for Sustainable Homes should be deleted. The appellant argued that due to the withdrawal of the Code following a written ministerial statement in March 2015 there was no practical case for the condition to be applied on development yet to commence. The council accepted that if the appeal decision was made after 1 October 2015 the condition should be removed. The inspector decided he had no reason to disagree with this view and noted that the site visit for the appeal took place after this date.

The following DCP chapter is relevant: 4.412

Anticipated permitted development

Here is a cut-out-and-keep case which provides evidence not only that permitted development rights do not apply to a development which has yet to be completed, but also that they cannot apply in anticipation of completion of the development.

The case concerns a basement extension in central London (DCS Number 400-010-068). The appellants sought a certificate of lawfulness stating that a rooflight would constitute permitted development, subsequent to the completion of the development. The planning inspector explained, however, that his assessment must be based on whether or not the operations proposed to be carried out would be lawful if begun at the time of the application. In this respect he referred to the decision of the High Court in R. (on the application of Townsley) v. Secretary of State for Communities and Local Government [2009] in which Mr Justice Collins stated “ “It seems to me quite plain that the GPDO cannot be used to effect a change in what is permitted by a planning permission when that planning permission is being carried out. The purpose of the GPDO is to allow alterations and extensions or amendments to an existing building which has already been constructed.” As the basement extension had not been constructed the inspector concluded that the proposed operations could not have been lawfully begun at the time of the application.

The following DCP chapter is relevant: 4.343

Is it just us, or is this one something of a game-changer?

Here is the story: an Essex council granted permission in 2008 for greyhound kennels in countryside identified as a special landscape area (SLA). That permission was never implemented and a bungalow was built instead. Retrospective permission for the bungalow was denied at appeal in 2011. Permission was sought again last year and this time it was granted at appeal (DCS Number 400-010-072).

The inspector found that the bungalow had a limited impact on the character and appearance of the area, being perceived as part of a wider enclave of built development which included a complex of farm buildings. He accepted that the site was in a relatively remote rural location, with poor accessibility, and a limited range of local services nearby. However, he held that this should not automatically preclude further housing development, as long as it could be adequately assimilated without causing harm to the character and appearance of the locality. He reasoned that significant parts of the district were predominantly rural and that a realistic approach was therefore required. The position with regard to housing land supply was contested but the inspector held that, whatever the position, the dwelling made a small contribution to the supply of housing.

So, does a realistic approach to housing supply mean that we have now arrived at the point where we can delete all of the following, once held so dear?

protection of the countryside for its own sake

development to be directed away from designated areas such as SLAs

housing generally precluded outside settlement boundary

development to be sustainably located

The following DCP chapter is relevant: 9.23