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Expediency

Readers dealing with enforcement matters will know that it is a matter of judgement for a local authority as to whether or not it is expedient to take enforcement action against a breach of planning legislation; the funds to pursue such action are, of course, drawn from the public purse.

Accordingly, such readers might find useful the following neat summary of the law on expediency, found in a recent appeal decision (DCS Number 400-013-325):

“The starting point in this regard is section 172(1)(b) of the 1990 Act as amended, which specifies that a notice may be issued when it appears to the local planning authority that it is expedient to do so, having regard to the provisions of the development plan and any other material considerations.……

Firstly, the Appellant’s argument in this regard is based solely on the notion that he should have been given the opportunity to make a planning application for some or all of the unauthorised works before enforcement action was pursued. However, even though this is often good practice it is not a statutory requirement and thus has no bearing on the legal standing of the enforcement notice.……

Secondly, the High Court found in R (Ardagh Glass Ltd) v Chester CC [2009] that, as a test, ‘expedient’ suggests the balancing of the advantages and disadvantages of a course of action, the basis for which should be the assessment of planning considerations. The phrase ‘where it appears to them’ in section 172(1) is a clear indication that whether to issue an enforcement notice on this basis is a matter for the local planning authority’s discretion..…..

In any event, in the case of Britannia Assets v SSCLG & Medway Council [2011] it was held that there was no jurisdiction for an Inspector to determine whether or not the local planning authority had complied with its obligation under section 172 in this regard. Any legal implications of whether it was ‘expedient’ for the authority to issue an enforcement notice are therefore matters to be dealt with by way of judicial review.”

The following DCP section is relevant: 4.5313

Replacement windows in historic buildings

Readers might wish to note the detailed consideration given by an inspector to an appeal against the refusal of listed building consent for the replacement of a bay window in a Dorset cottage.

To many owners of historic homes it might come as a surprise to find that “Before any decision is made about whether to repair or renew, it is essential that the condition of the joinery is fully understood. It usually necessary to carefully remove the frames so that a detailed examination can be made. It is then possible to prepare an accurate schedule of repair, by reference to each joint, each element of the joinery and each pane of glass.” The inspector goes on to explain in precise terms why the proposed insulated glass units (IGUs) would fail to preserve the special architectural and historic interest of the building (see (DCS Number 400-013-370)). In this regard she draws attention to useful advice on upgrading windows given by Historic England: Traditional Windows: Their Care, Repair and Upgrading, September 2014.

The inspector reports that the HE advice discusses the importance of the scientifically well-established concept of the “whole building approach” to energy conservation in historic buildings, which simply means looking at how the energy usage can be saved throughout the whole property, not just by one measure. It also sets out the evidence gained through research, which has shown how measures such as blinds, insulated curtains and shutters can be a cost effective way of achieving good levels of improvement to the thermal efficiency of older windows.

In the case before her the inspector decided that the limited public benefit in terms of the small reduction in carbon emissions when compared to other ways of improving the thermal performance of the replacement bay window would not justify the harm caused to the significance of the listed building by the visually discordant use of slim profile IGUs.

The following DCP section is relevant: 27.2321

Vertical Sky Component in practice

In Vertical Sky Component – an explanation the Blog explained how VSC is calculated. Just as an example, here it is in practice in a recent appeal decision relating to a flat block extension in east London (DCS Number 400-013-364)

“……BRE guidelines indicate that a window may be adversely affected if the VSC measured at the centre of the window is less than 27% and less than 0.8 times its former value. The resultant ratio for the second floor window of No 363A would be less than 27% and 0.66 times its former value. I consider that this loss of daylight would result in significant harm to the living conditions of occupiers of the second floor of No 363A.”

“……I conclude that the development would have a harmful effect on the living conditions of occupiers of … 363A … through … a harmful loss of daylight to the second floor window …”

The following DCP sections are relevant: 4.236 and 8.432

A nice cup of tea and a sit down

In quashing an enforcement notice aimed at the unauthorised change of use of a travel agency (Class A1 use) in central London to a mixed use comprising a retail shop and a café/restaurant an inspector recognised the leisure aspect of shopping trips (DCS Number 400-013-348).

Development plan policy indicated that existing A1 retail would be protected throughout the borough except where the council considered that the unit was not viable, and the appellant had provided no evidence to show that the continued use of the appeal premises for an A1 use was not viable. Nonetheless, the inspector found that the use offered the prospect of providing more jobs than an A1 use of the premises, and increasing average spend in the area. Therefore, it was consistent with the objectives in the National Planning Policy Framework in terms of supporting economic growth and competitive town centres that promote customer choice. He considered that, on balance, these considerations outweighed the fact that the use did not accord with the development plan. In this regard he noted a study by the University of Southampton concerning the leisure aspects of shopping trips. The study, “High Street Performance & Evolution”, was published in July 2014. In summary, it produced evidence to suggest that the leisure aspect of shopping trips, including places to eat, is a significant driver of footfall in high streets. The study also suggested that the leisure offer increases both time spent within the high street as well as the average spend.

Quite. Shopping all day is exhausting.

The following DCP chapter is relevant: 16.131 

Think positive on enforcement

An inspector has upheld an enforcement notice requiring the removal of an unauthorised shopfront in a north London conservation area (DCS Number 400-013-303), notwithstanding there being no requirement in the notice to replace it.

The requirements of the notice were to “remove the unauthorised shopfront in its entirety and remove from the land any resultant debris”. The inspector found that the large expanses of glazing and metal framework of the unauthorised shopfront appeared contemporary in design and failed to reflect the traditional appearance and architectural composition of the host building and surrounding area. In addition, the shopfront did not include a proper stallriser or any other traditional shopfront features. Overall, he considered that the unauthorised shopfront by reason of its design and inappropriate use of materials detracted from the historical and architectural integrity of the area and failed to preserve or enhance the character or appearance of the host building and the conservation area.

The inspector was alert to the fact that compliance with the notice would leave the retail unit without a shopfront. There was no requirement in the notice, for example, to install a shopfront of the same design, materials and appearance as the shopfront that was previously in place. He suggested that the appellant might well need to enter into discussions with the council about the way forward, explaining that the council has powers to extend the period for compliance with the notice under the provisions of section 173A(1)b of the 1990 Act as amended, should it consider that this would be appropriate and beneficial in the circumstances of the case.

Perhaps the point to be made here, and which perhaps this case illustrates, is that enforcement ought to be viewed as a positive activity. As the inspector said, the poor condition of the previous shopfront was an opportunity to improve the character and quality of the area and the way it functions but that the opportunity had been wasted. Here is where enforcement can retrieve the situation. Positive enforcement, in the form of a specification for a new replacement shopfront, has the potential to bring about an enhancement to the street scene. Don’t forget this part.

The following DCP chapter is relevant: 4.536

Sangfroid on SANG contributions

An inspector has allowed an appeal against the refusal of planning permission for a house within 5km of the Thames Basin Heaths Special Protection Area, after accepting the appellant’s clever solution to dealing with the restrictions applying to CIL contributions towards Suitable Alternative Natural Greenspace (SANG) (DCS Number 400-013-309).

Mitigation measures are normally required in the form of contributions towards SANG in order to ensure that recreational pressure from additional development does not have any significant effect on the special interest features of the SPA. Under Regulation 123 of the CIL Regulations, however, a planning obligation may not be taken into account if it would fund an infrastructure project for which there are already five or more obligations.

A unilateral undertaking was before the inspector which provided for a contribution towards the ongoing maintenance and enhancement of SANG. She noted that provision of SANG is usually caught by the pooling restriction under Regulation 123(3) of the Community Infrastructure Levy Regulations 2010. However, given that the contribution was towards ongoing maintenance and enhancement she was satisfied that this did not apply.

The contribution would meet the tests in Regulation 122(2) of CIL in that it was necessary, directly related to the development, and fairly and reasonably related in scale and kind, she determined. In light of this conclusion the proposal made adequate provision to mitigate any effects on the Special Protection Area, she decided.

If you find that there is no room for you to make provision towards SANG, therefore, see what the situation is with regard to maintenance.

The following DCP chapter is relevant: 4.61

Rave on

Whilst we are on the subject of definitions, here is an appeal case in which the inspector considers the definition of a nightclub (DCS Number 400-013-247).

Planning permission had been granted for the use of edge-of-centre premises in west Yorkshire as an internet lounge and sandwich bar. An enforcement notice alleged an unauthorised material change of use to uses including a nightclub and shisha lounge.

The appellant argued that the uses of the building did not include a nightclub. He suggested that, although a nightclub ‘is difficult to describe…it most certainly would involve opening until the early hours of the morning and the sale of alcohol’. He stated that the venue was not open until 0500 hours and there was no sale of alcohol.

The inspector accepted that there is no statutory definition of ‘nightclub’. She reasoned, however, that the appeal could still be considered by establishing the ordinary meaning of the word. She recorded that the Concise Oxford English Dictionary defines a nightclub as ‘a club that is open at night and provides refreshment and entertainment’. That description, which was broader and more flexible than the appellant’s, must be right, she determined. A nightclub would inevitably operate at night but exact opening and closing times would vary, and the sale of alcohol was not essential. She concluded that nightclubs can be aimed at different customers and provide different types of entertainment and refreshment.

The following DCP chapter is relevant: 17.1112

Major development

Rewind to the 150-year anniversary of the publication of Alice in Wonderland in 2015 and you have a suitable setting for appeal case (DCS Number 200-005-666) in which the inspector considered the definition of ‘major development’.

The appeal concerned the redevelopment of a cheese factory in a national park village with 26 houses. Development plan policy stated that major development should not take place within the national park other than in exceptional circumstances, and major development would only be permitted following rigorous consideration of the criteria in national policy. The inspector recorded, however, that national planning policy is now contained within the NPPF, and it does not provide a definition of ‘major development’.

The inspector noted that The Town and Country Planning (Development Management Procedure)(England) Order 2010 provides a definition of ‘major development’, and it was clear to him that the proposed 26 new dwellings, on a 2.56 hectare site, would fall within this definition. Parties, however, referred to Deborah Jane Aston and Westcott Meadow Action Group Limited v The Secretary of State for Communities and Local Government, Mole Valley District Council and Taylor Wimpey UK Limited [2013], the judgment in which concluded that the phrase ‘major development’ should not have a uniform meaning for policy, procedural rule or Government guidance, but rather be construed in the context of the document in which it appears.

The court ruling, then, signifies that the meaning of the phrase ‘major development’ changes according to where it appears, not unlike in Wonderland: “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.”

Given the prominence of the appeal site in the national park landscape the inspector determined that redeveloping it in the manner proposed would be an act of major development. That was how the inspector dealt with the conundrum but how would readers answer Alice?

The following DCP chapter is relevant: 5.1551

Weasel words

An appeal decision relating to the refusal of outline permission for “exemplar sustainable self-build development” in Cornwall shows that it takes more than vocabulary to gain permission for housing outside a development boundary (DCS Number 400-013-227).

The inspector had this to say in respect of the proposal’s credentials as ‘exemplar’ development:

“The appellant suggests that the proposal should be considered against the provisions in the fourth bullet point to paragraph 55 of the Framework. This allows, as one of the special circumstances, permission to be granted for an isolated dwelling in the countryside because of the exceptional quality or innovative nature of the design. However, to meet these criteria any dwelling would need to meet these requirements, and as an outline application it is very difficult to show that any dwelling would meet these exceptional requirements. To state that the proposal, as in the description, would be an “exemplar”, is not sufficient; it needs to be demonstrated. There is nothing in the application to indicate that the proposals would be truly outstanding or innovative, and consequently I can give this proposal no additional benefit under these provisions.”

In respect of the ‘sustainable’ claim the inspector concluded that:

“….the appeal site is not well located in an accessible location. Given the distances from the main facilities I give this harm significant weight.”

The DCP Blog makes no objection to the use of ‘exemplar’, or ‘sustainable’ when it is substantiated by evidence but could we all stop devaluing our vocabulary by scattering these words with such carefree abandon when it is not?

The following DCP chapter is relevant: 9.23

Belt and braces

“Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects”, says Paragraph 206 of the NPPF.

Council planners might be advised to use a reusable putty-like pressure-sensitive adhesive to attach this paragraph to the top of their monitors when considering the conditions that might be attached to a planning permission, as inspectors are quick to strike out conditions which do not meet the tests.

A case in point is (DCS Number 400-013-187). In this case an inspector took just two-and-a-bit paragraphs to delete a condition attached to permission for an extension to a house in southeast London. The condition sought to ensure that the existing dwelling was not subdivided into two separate dwellings. The inspector pointed out, however, that the subdivision of a single dwelling house into two would be an act of development which requires full planning permission, irrespective of whether or not the condition was retained. The condition was unnecessary and unreasonable and was not required to ensure that the dwelling remained occupied as a single dwelling house, she concluded.

You don’t need braces if you already have a belt.

The following DCP chapter is relevant: 4.412