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Capable of agricultural use/designed for agricultural use

An enforcement notice requiring the demolition of a structure on a landholding in Somerset was upheld, (see DCS Number 200-004-565), an inspector deciding that although it might be capable of agricultural use it was not designed for agriculture.

The council believed that the blockwork structure was on its way to becoming a dwelling and that it was prudent to take enforcement action, in fairness to the developer. The council relied on the case of Chichester D.C. v FSS & Simon Green [2006] which it considered to indicate that an enforcement notice can be served against a building likely to become a dwelling. The inspector had some doubts as to this interpretation but noted that the judgement went on to indicate that, in deciding whether to grant permission, a decision maker would need to take account of what the essential character or design of the building was. It was recognised that it was insufficient to simply ask whether a building designed for one purpose might be capable of use for another purpose.

The inspector observed that the building was incomplete, being a blockwork structure constructed up to eaves level. There was no first floor in place but joist hangers had been installed in readiness. The walls would be clad externally in white lias stone and the roof in slates, with table stones to the gables. The drawing showed the proposed use of the ground floor as four animal pens, with a tractor/machinery store in the centre. The first floor would be used for hay and feed storage. The building had numerous openings in the masonry which had the character of domestic fenestration. The main entrance had a height of less than 2m, which would make it of limited use for its stated purpose of housing a tractor and a loader, or for other agricultural machinery.

The inspector found that the building was plainly capable of being completed and put to use as an agricultural building. However, he was struck by its underlying residential character, which led him to the view that it had not been designed for agricultural use. Whilst he accepted that the building was capable of being used for agriculture, he supported the council’s view that it had not been designed for agricultural use. It appeared to have been designed to be readily convertible to a dwelling, he concluded.

The following DCP chapter is relevant: 22.1334

Beds in sheds – positive deception or passive omission

An enforcement notice directed at the residential use of a blockwork building to the rear of a terrace house in north London was quashed, an inspector finding that it had acquired immunity after having been in use as a dwelling for four years (DCS Number 200-004-558). He noted that deliberate concealment of a breach of planning control enables enforcement action to be taken after the expiry of the prescribed periods (Welwyn Hatfield BC v SSCLG & Beesley), and the council argued that a number of alleged acts of deception had been undertaken by the appellant. These were the appellant’s failure to pay council tax for the building, the failure to apply for planning permission or building regulation approval, and the retention of the garage door in the rear elevation of the building. The inspector considered, however, that the appellant’s failure to pay council tax and the failure to apply for planning permission or building regulation approval are not uncommon among those who build or extend houses or convert buildings into houses without planning permission. He determined that they were passive acts of omission, rather than a Welwyn type positive deception that would disentitle reliance upon section 171B (1) of the Act. He also took the view that the retention of the garage door was an attempt at keeping a low profile, rather than a positive act of concealment.

The following DCP chapter is relevant: 4.5353

Back to the 70s

An inspector rejected the substitution of house types on a backland development in Nottinghamshire (DCS Number 400-010-267), finding that the design of the two houses, originally granted permission in 1971, would be more appropriate to the area.

The previous planning permission gave permission for the erection of five bungalows and two detached houses. The bungalows had been constructed but the two houses were never built. The inspector determined that as the planning permission had been implemented it remained extant and there was therefore a fallback situation. He noted that the proposed development would introduce an atypical contemporary design of dwellings with mono-pitched roofs and large expanses of glazing. The design would also result in large expanses of elevational materials to almost roof height. He accepted that the site was capable of sustaining a development of significant scale and of innovative design. He decided, however, that It was radically different from the well established traditional design of the properties in the surrounding locality to the extent that it would be clearly at odds with the prevailing character of the area and would result in an incongruous form of development.

Seventies style it is, then. Storage heaters and avocado bathroom suites?

The following DCP chapter is relevant:4.132

Some lavatory humour

The residential conversion of former public toilets on the Isle of Wight was allowed (DCS Number 400-010-266), an inspector not sharing the council’s concern that the proposal would appear squat within the streetscene.

Perhaps it’s just us.

A moment of wonder

An appeal against a refusal under the prior application procedure for the conversion of a barn in north Yorkshire to two dwellings was dismissed because the building had not been solely in agricultural use (DCS Number 400-010-257).

The inspector found that the suggestion that the holding had been used solely for agricultural purposes did not stand up to scrutiny. Both the council’s photographic evidence and his own site visit suggested that there had been, at the very least, a mixed agricultural and equestrian use. Accordingly, he could not conclude that the use had been solely agricultural. Therefore, the development was not permitted development pursuant to Class Q of the GPDO.

Without in any way calling into question the inspector’s decision, just wondering what difference it makes. Why might the residential conversion of an agricultural barn be acceptable under GPDO rights whereas the residential conversion of a stable is not?

The following DCP chapter is relevant: 4.3423

Further examples of the easing of rural restraint policy

Local need policy inconsistent with NPPF

A new dwelling was allowed in a Devon village, an inspector deciding that there was no need for local need to be proven (DCS Number 400-010-243). The inspector accepted that the village did not have a defined development boundary, nor was it listed as a settlement within the core strategy. Core strategy policy stated that development would only be permitted outside the listed settlements where it could be delivered sustainably and also in response to a demonstrable local need. He ruled, however, that reference to a demonstrable local need in the policy was a more restrictive approach than the presumption in favour of sustainable development advocated at paragraph 14 of the NPPF. The policy was therefore not wholly consistent with the NPPF, he determined.

The inspector acknowledged that the private car might be used more often than the bus to access the services of the local town but reasoned that this was often the case within settlements, even including the villages listed in the core strategy. The provision of a single dwelling would also have a positive social impact in providing a new dwelling to meet the needs of the appellants and free up their existing home for family occupation.

The definition of ‘isolated’

And in a case concerning the erection of three dwellings in rural Gloucestershire (DCS Number 400-010-244) the inspector examined the meaning of ‘isolated’.

The council argued that in view of its ability to access limited services and its reliance on other nearby settlements, the application site was isolated within the meaning of paragraph 55 of the NPPF. The inspector recorded that there is, however, no definition of the term ‘isolated’ in the NPPF and his attention had been drawn to the approach taken in another appeal decision where the everyday definition of isolated as meaning ‘lonely or remote’ was relied on by the inspector. He agreed with that approach and accordingly used the same definition in determining the appeal before him. The proposed development would be located on the edge of the village, he determined, opposite and adjacent to existing properties and could not in this respect be said to be lonely or remote.

The following DCP chapter is relevant: 9.13

This case further illustrates the need for plain English

Outline permission for up to 90 dwellings on the edge of a town in Staffordshire was rejected, the inspector finding that it would have a significant adverse effect on the setting of a conservation area and that this would materially harm the conservation area’s significance (DCS Number 200-004-537). He agreed with both main parties that the resulting effect would amount to less than substantial harm in the terms of the Framework. However, a finding of less than substantial harm, he explained, should not be equated with a less than substantial planning objection.

‘…in the terms of the Framework’ is perhaps the key phrase. Why is planning creating its own terminology when it already has plain English at its disposal?

The following DCP chapter is relevant: 4.37

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