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Joined-up thinking?

Aren’t we all supposed to be reducing energy use? If so, wouldn’t it be best to avoid sanctioning new development which relies on mechanical ventilation whenever and wherever possible? The reason we ask is that a recent appeal decision against the refusal of outline permission for two flats in Yorkshire appears to highlight a lack of joined-up thinking in the application of planning policy (DCS Number 400-019-524).

The appeal site in this case was within one metre of an industrial coach depot. The planning application was supplemented with a noise impact assessment which recommended that a ventilation system with a minimum attenuation of 23.1 decibels within habitable rooms was installed. The suggested systems for mitigation comprised either trickle ventilation or mechanical ventilation. The council asserted that the use of trickle ventilation was not considered to provide sufficient levels of ventilation for residential properties, but the inspector noted that she had been presented with no reasons why this was the case. She considered that both options would provide suitable ventilation and saw no reasons why either method could not be employed, deciding that the matter could be satisfactorily conditioned.

Concluding that the development would provide sufficient living conditions for future residents, the inspector found compliance with development plan policies which sought to deliver suitably located development that provided a quality setting for development and had no significant detrimental impact on the amenity of prospective users. She also found no conflict with the Framework which advises that development should be appropriate for its location, by avoiding noise giving rise to significant adverse impacts on health and the quality of life.

That might be so, and we are no engineering experts here on the Blog, but how does the use of mechanical ventilation square with sustainability objectives in relation to energy use?

Further examples of appeals where noise from industrial and commercial sources was an issue can be found at section 4.1614 of DCP Online.

Twice over

There is no reason why the curtilage of one dwelling cannot overlap the curtilage of another dwelling, an inspector dealing with an appeal against the refusal of a certificate of lawfulness for a dormer window at a house in Sussex has maintained (DCS Number 400-019-492).

In the case before him the side wall of the dormer window would sit on a party wall. The council contended that it could therefore not be permitted development because it would not be wholly within the curtilage of the appeal property, and permitted development rights only apply to development within the curtilage of a dwellinghouse.

The inspector explained that adjoining curtilages can, as McAlpine v SSE [1995] decided, overlap each other, and this was particularly relevant in a party wall situation where the result could be the collapse or partial collapse of both dwellings if the wall were removed. The party wall, he continued, was such an integral part of the two dwellings that there was no reason why their curtilages could not overlap because such small areas were involved.

Guidance on the definition of curtilage can be found at section 4.3444 of DCP Online.

Design matters

After a few quiet weeks the Planning Inspectorate appears to be getting back into its stride following the publication of the revised NPPF. So, dear readers, here on the DCP Blog we are keeping a watchful eye for appeal cases where new policy has had an impact.

A case in point is (DCS Number 400-019-479) which involves a reserved matters application for seven houses in Surrey. In this case the inspector made it clear that good quality design is a must.

The revised Framework, the inspector noted, “is a material consideration that states in Paragraph 130 that local planning authorities should seek to ensure that the quality of approved development is not materially diminished between permission and completion.” He recorded that the outline scheme was accompanied by indicative drawings presented in some detail. These demonstrated that a scheme could be conceived that would include high levels of soft landscaping and attractive, well detailed and appropriately proportioned homes. The houses in the indicative scheme included decorative porches, balanced composition, interesting fenestration, chimneys, gables and enclosed softening front gardens. He considered that such a development would have the ability to enhance the site and the edge of the settlement more generally and was justly approved by the council.

However….the inspector remarked that the indicative scheme had not been followed through into the reserved matters. He accepted that there was no requirement for it to do so. Nevertheless, he found it entirely unclear why the apparently positive scheme presented at the outline stage had been significantly ‘watered down’. The poor quality of the appeal scheme, he ruled, was to be considered in this context as well as the Framework’s guidance that permission should be refused for poor design that fails to take opportunities available for improving the character and quality of an area.

In addition, the inspector noted that the Framework states in Paragraph 128 that applicants should work closely with those affected by their proposals to evolve designs that take account of the views of the community. Given the level of objection to the scheme, it seemed to him that the reverse had occurred. Dismissing the appeal, he concluded that the scheme would harm the character and appearance of the area.

Section 4.13 of DCP Online discusses the scope of development control to influence the layout and design of new development.

Flame test

Q: What do you call Fireman Sam when he is retired?

A:  Sam.

Somewhat more seriously, an inspector dealing with an appeal against the refusal of planning permission for four flats on a landlocked site reached by an unbound vehicular track in south London (DCS Number 400-019-470) has addressed concerns that fire engines would be unable to reach the site in the event of a fire.

Sensibly, the inspector turned to the Building Regulations for guidance. He observed that fire tenders would be too large to negotiate the vehicular track, and the development would exceed the limit of 45 metres distance set out in the Building Regulations. He acknowledged the appellant’s argument that this distance can be increased to 90 metres if sprinklers are installed. He noted, however, that this relates only to houses, not flats. In any case, he reasoned, sprinklers are generally installed to allow more time for evacuation, rather than to extinguish a fire and are not particularly useful for the control of electrical or kitchen fires. Nor would they prevent the spread of fire on the outside of a building. In any event, ambulances would also need to reverse in or out of the site. As such, he concluded, even if he were to give weight to the argument advanced with regard to sprinklers and fire tenders, emergency access would still be unsatisfactory.

Section 4.1542 of DCP Online concerns fire prevention.

Money no object

Regular readers might have noticed that the DCP Blog has been running a bit of a thread on the essential need test for farm dwellings (see Plus ça change….). An inspector who sanctioned the retention of a log cabin at a Wiltshire equestrian enterprise has provided further guidance on the extent to which financial viability must be proven (DCS Number 400-019-439).

The council was concerned that the business was not viable, in a general sense, because it only worked for the appellant because of her low overheads and lack of mortgage.

The inspector acknowledged that, although no longer up-to-date policy, there has been a tendency for decision makers to still rely on the advice in the annex to PPS7 on how to establish an essential need. This advice requires evidence for both a functional and a financial test to be provided. He noted that the relevant part of the NPPF is paragraph 55 [this is now paragraph 79] which says that isolated homes in the countryside should be avoided unless there are special circumstances. These include “the essential need for a rural worker to live permanently at or near their place of work in the countryside”. He recorded that since the publication of the NPPF the courts have considered this example in Regina ex parte Embleton PC and David Ainsley v Northumberland CC and Ivor Gaston [2013]. Here, the judge accepted the argument that the test in paragraph 55 of the NPPF was different from PPS7 as it only requires a planning judgement as to whether there is an “essential” need for a worker to be there or not. In particular, it does not require “that the proposal is economically viable”.

The inspector reasoned that all that needs to be determined is whether there is an essential need or not. All that Embleton did, he maintained, was to make this clear and to confirm that the NPPF does not require a proposal to be economically viable. It does not prevent financial evidence from being considered, however. The final balancing act is a planning judgement, where the failure to show financial viability need not be fatal, but should be part of the decision-making process.

The inspector recognised that the council was sensibly concerned that because of viability issues there might be no long term future for the business, and it was reluctant to grant a permanent permission for a dwelling to service a business that might not survive, regardless of the functional need, as this would lead to an isolated dwelling in the countryside against which there is a strong policy objection. However, he thought its concerns were exaggerated. He reasoned that while the business might fail a strict financial test, the purpose of such a test is to ensure the long term viability of the business, which, if it continued to be operated by the appellant, would seem was assured.

The inspector concluded that if the permission were made personal to the appellant, as well as linked to the business, the proposal would accord with development plan policy and paragraph 55 of the NPPF. He attached a condition to ensure that the appellant could only remain in the log cabin while employed or last employed in the business, reasoning that if the situation for the business changed, it was always open to another person who wished to run it from the log cabin to apply to have the condition removed or altered. Subject to conditions he therefore allowed the appeal and granted planning permission for the log cabin.

National guidance on agricultural dwellings is set out at section 9.331 of DCP Online.

No worries

An inspector dealing with an appeal against the refusal of a prior approval application for the residential conversion of a redundant agricultural building at a Sussex farm under Schedule 2, Part 3, Class Q, of the GPDO has confirmed that permission is not granted by default if the council fails to determine the application within the requisite 56-day period (DCS Number 400-019-444).

The inspector recorded that the council had determined that the change of use would require its prior approval, but that the notification had been made after the expiry of the 56-day determination period. Its failure to adhere to the timescale set out in the GPDO did not need to be of any great concern to the council, however, as the inspector explained:

“While the 56 day determination period was not extended by agreement in writing between the parties, pursuant to Article 7(c) of the Order, if the development would not be compliant with the limitations listed in Paragraph Q.1 then the fact that the Council issued its determination out of time would be of no consequence. That is because the Court of Appeal in the case of Patrick Keenan and Woking Borough Council and the Secretary of State for Communities and Local Government [2016] EWHC 427 (Admin), [2017] EWCA Civ 438 has confirmed that if a development would not come within the description for a permitted development stated in the Order, then permission for the development cannot be deemed to have been granted under Article 3(1) of the Order by reason of the failure to issue a determination in time.”

In the case before him the inspector found that the extent of the building operations needed would exceed those reasonably necessary for the building to be converted, and there had been a change from agricultural use, so the conversion would not have been permitted development in any event. He dismissed the appeal.

Further information concerning barn conversions under Part 3 of the GPDO can be found at section 4.3423 of DCP Online.

Mission impossible

In deciding an appeal against the refusal of a certificate of lawfulness for the use of an outbuilding at a house in north London as a granny annexe (DCS Number 400-019-266) an inspector has explained that the decisive factor was not whether the building would be used for purposes incidental to the main dwelling. Rather, he determined, it was necessary to assess whether the building would be used as a physically and/or functionally separate dwelling, or would provide living accommodation that was integral to the use of the existing dwelling.

The plans showed that the annexe would include a bedroom, living room with cooking facilities, and a WC and shower room, the inspector noted. The building would thus contain all of the facilities required for day-to-day private living, so that it could potentially be used and occupied as a separate dwelling. The appellant clarified that the proposal was for the use of the outbuilding as a ‘granny annexe’ by a family member in association with the occupation of the main house.

Setting out the legal background, the inspector recorded that permission is granted under Schedule 2, Part 1, Class E of the GPDO for the provision of buildings within the curtilage of a dwellinghouse where required for purposes incidental to the enjoyment of the dwellinghouse. The term ‘incidental’, he explained, describes uses which are not integral to, but have a functional relationship with the primary use of the planning unit. Examples of uses incidental to the enjoyment of a dwellinghouse might include car parking or a home gym. The Government’s Technical Guidance: Permitted Development Rights for Householders, clarifies that when utilising Class E rights, a purpose incidental to a house would not cover normal residential uses, such as separate self-contained accommodation or use of an outbuilding for primary living accommodation.

The inspector noted that the appeal building would be used for living and sleeping purposes. Since those activities are part and parcel of, or integral to a dwellinghouse use, he reasoned, it was clear that the building would not be used for incidental purposes. However, he continued – and this is the bit to make a particular note of – “it does not follow that there would be a material change of use of the building without the requisite planning permission, because the land already has a lawful residential use.” The decisive factor was not whether the building would be used for purposes incidental to the main dwelling. Instead, the decisive factor was whether the building would be used as a physically and/or functionally separate dwelling, or would provide living accommodation that was integral to the use of the existing dwelling.

In support of his ruling the inspector noted that his approach was consistent with the judgment in Uttlesford DC v SSE & White [1992], where enforcement action had been taken against the residential use of a building permitted for incidental use (as a garage). It was held by the court that, although the garage now had the facilities of a self-contained unit, it nonetheless remained part of the same planning unit as the original dwellinghouse and the planning unit remained in single family occupation. In that situation, a material change of use had not occurred.

The inspector concluded that the use of the outbuilding as described by the appellant would not create a new planning unit because it would not be physically separate or distinct from, or occupied for different or unrelated purposes to, the use of the existing dwellinghouse within the same planning unit. He decided that the council’s refusal to grant a certificate of lawful use or development in respect of the use of the outbuilding as a granny annexe was not well-founded and that the appeal should succeed.

The inspector is no doubt correct in his analysis of the legal framework. This framework, however, gives rise to a continuing difficulty for local authorities, particularly ones where ‘beds in sheds’ are a problem. How do you establish who is and who is not a family member and how do you monitor the day-to-day use of an outbuilding? It seems to us here on the Blog that we might be asking councils to undertake an impossible mission.

Further consideration of this topic can be found at section 10.2 of DCP Online which concerns self-contained accommodation in residential outbuildings and annexes.

Enlarging on extensions

Unsurprisingly, confusion can arise about the meaning of the reference in Class A, Part 1, Schedule 2 of the GPDO to “the enlarged part of the dwellinghouse”. Does it mean just the extension currently proposed, or should it include previous extensions to the dwelling? The answer is that it used to be the latter, then it was the former but now it’s the latter, as helpfully set out by an inspector in a recent appeal decision (DCS Number 400-019-328).

The case before the inspector involved the erection of a first floor extension on top of an existing ground floor extension. He recorded that the April 2016 edition of ‘Permitted Development Rights for Householders – Technical Guidance’ set out the Government’s view that a first floor addition would not be permitted development if it was located on top of an existing ground floor extension which projected by more than 3m from the original rear wall. He went on to explain, however, that that interpretation had been the subject of a legal challenge in The Queen on the Application of Hilton v Secretary of State for the Home Department [2016]. In Hilton it was held that the ‘enlarged part of the dwellinghouse’ should be interpreted as meaning the specific element that was proposed at the time, not taking account of previous extensions.

Subsequent to Hilton, however, the Government issued The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2017. This introduced paragraph A.1(ja) to Part 1 which states that development would not be permitted if “any total enlargement (being the enlarged part together with any existing enlargement of the original dwellinghouse to which it will be joined) exceeds or would exceed the limits set out in sub-paragraphs (e) to (j)”. It seemed to the inspector that the Government had been concerned about the potential implications of the Hilton judgement and made changes to the statutory instrument to the effect that ‘the enlarged part’ of the dwellinghouse should be considered as the total enlargement, including the proposed and any existing extensions. A new edition of the Technical Guidance was also published in April 2017 to confirm that position, which remains in force. So, in the case before the inspector the ‘enlarged part of the dwellinghouse’ comprised the first floor addition and the existing single storey extension taken together.

Good. That’s that sorted. Time for a lie down.

Section 4.3421 of DCP Online concerns GPDO Part 1.

Mind the gap

A useful ruling on the meaning of ‘limited infilling’ can be found in the decision relating to an appeal against the refusal of planning permission for a single dwelling in the Greater Manchester green belt (DCS Number 400-019-367).

The inspector recorded that there was no evidence before him of a definition of ‘limited infilling’ or ‘villages’ contained within the Development Plan or the Framework, or indeed its glossary. He considered that “infilling” implies the development of a site that is between existing buildings. In respect of the plot itself, he observed that it sat between two residential properties on similar sized plots, which formed part of a wider established built form. He therefore considered that the proposal did constitute infilling in a village. In reaching this conclusion, he had regard to Julian Wood v SSCLG, Gravesham Borough Council [2015].

The inspector reasoned that the crux of the matter was whether the proposal was limited infilling in a village. He noted the appellant’s argument that the reference to limited was only concerned with the size of the plot, and he agreed that in his experience, infill proposals are typically only concerned with the size of the plot, not the size of the dwelling. However, he considered that the reference to ‘limited’ in the fifth bullet of paragraph 89* of the Framework requires a consideration of both the scale and form of the development and has to be interpreted in the context of the overall aim of green belt policy, which is to preserve the openness of the green belt. This implies minimising the loss of significant open gaps between buildings, he determined.

The proposed dwelling, however, would extend almost the full width of the plot. Due to its significant width, the inspector held that the dwelling would fail to reflect the generous spacing of the neighbouring properties. Therefore, he found that the dwelling would be in excess of what would be a reasonable definition of limited infilling.  

*In the new NPPF this is Para 145 e).

Section 4.2511 of DCP Online concerns current and emerging green belt policy and guidance.

Cut to pieces

There is always talk about how roads and traffic cut the heart out of our towns and villages. Perhaps that’s why an inspector with a sharp tongue made this incisive observation when putting a proposal for eight dwellings in Nottinghamshire under the microscope: “The proposed site access would be taken directly from Mansfield Road (A60) which dissects the settlement.” (DCS Number 400-019-373).

Information concerning highways and traffic generation issues in rural settlements can be found at section 9.1332 of DCP Online.