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Waking the dead

At the spookiest time of the year we found this in an appeal against the refusal of planning permission for the residential conversion of a church in the Scottish Highlands (DCS Number 400-019-958):

“I am satisfied that during the construction phase, there will be minimal disruption or disturbance to those buried in the graveyard….”

Section 10.3 of DCP Online covers institutional building conversion.


Behind the wheel

The conventional planning view has been that low levels of car ownership can be expected amongst elderly people, and accordingly, parking requirements at retirement housing need only be minimal. Perhaps this view is becoming a little outdated, as an inspector determining an appeal against the refusal of planning permission for sheltered retirement apartments in Essex points out (DCS Number 400-019-603):

“I do not subscribe to the notion that retired occupants would by their very nature be less likely to own a vehicle. I would in fact suggest it is quite to the contrary, appreciating that self-reliance and freedom/distance of movement would be a value held high by those at a stage in their life where they have more free time.”

Of course, whether having a nonagenarian behind the wheel of a car is a good idea is another thing.

Section 7.237 of DCP Online addresses the topic of parking at retirement housing.

Inspector gadget

We all have to keep up with the times, including inspectors.

An inspector determining an appeal relating to a 49-storey mixed use building in east London (DCS Number 200-007-957) has reported that “At the site visit, virtual reality goggles allowed me to ‘see’ the proposed building in its future surroundings.”

Looks like he appreciated the experience – he granted permission.

Section 5.34 of DCP Online concerns appeal procedures.

Where else?

An inspector has granted retrospective planning permission for a treehouse at a house in Hampshire after disagreeing with the council that it was a highly visible, obtrusive and incongruous feature (DCS Number 400-020-057).

Whether the treehouse was ‘highly visible’ rather than just ‘visible’ rather depended on the individual who was looking towards the appeal property’s garden at the time, the inspector mused. Some people passing the dwelling and its garden would see it and others would not, he reasoned, with the distinction between them depending on a variety of factors including their exact position; whether they were looking straight ahead or around them, and whether or not they were actively observing their surroundings with any degree of interest.

As regards ‘obtrusive’, the inspector noted that this term is defined as ‘unpleasantly noticeable’ in the Collins dictionary. He considered that it might well be an apt description in the opinion of some who saw the structure. However, other passers-by might well regard the treehouse as an interesting feature and even welcome it as a reminder that children’s outdoor play still exists in an age when many are obsessed with computer games, tablets and smartphones. Many others, the majority, he suspected, would see the treehouse but have no particular interest and opinion on it one way or the other.

The inspector understood why the term ‘incongruous’ had been used, but asked where else would a treehouse for children’s play normally be positioned other than in a tree in the garden of a house?

The inspector held that the appeal application related to a well-designed and skilfully constructed treehouse that was a development of a good quality, and concluded that it was not harmful to the character and appearance of the street scene.

Other examples of appeals involving treehouses can be found at section 12.837 of DCP Online.

Supply and demand

An inspector determining an appeal against the refusal of outline planning permission for four dwellings in rural Hampshire has distinguished between housing demand and housing need (DCS Number 200-007-965).

Local plan policy allowed for small scale residential proposals of a scale and type that met a locally agreed need, the inspector recorded. The appellants argued that ‘demand’ for housing is synonymous with ‘need’.

The inspector reasoned that the distinction is that if there is a willingness and ability to purchase a home then there is a demand for it. However, if an inability to purchase a home of a required size and type arises, for reasons for example of unaffordability due to low income, then a person does not buy or demand a dwelling, but this does not obviate the housing requirements or needs of that person. She therefore disagreed with the appellants on this point.

In the case before her the inspector concluded that the appellants had not adequately demonstrated a specific and clearly identified unmet housing need in the local area to justify the countryside location of the proposal.

The topic of housing in the open countryside is covered at Section 9.2 of DCP Online.


Hot tubs do not require planning permission, a reporter determining a case in southeast Scotland has ruled (DCS Number 400-019-975).

The reporter identified the key factors he needed to assess in relation to whether the eleven hot tubs, sited at park lodges, required planning permission were their size, permanence and degree of physical attachment to the land (Cardiff Rating Authority v Guest Keen Baldwin Iron & Steel Co Ltd [1949] and Skerritts of Nottingham Ltd v SSETR & Harrow LBC [2000]).

Each hot tub was designed to accommodate up to six people and measured about 2 metres long by 2 metres wide by 1 metre high, the reporter observed. He acknowledged that they required connection to an electricity supply, but, using caravans as an analogy, connecting a structure to existing utilities would not, of itself, amount to a material operation, he determined.

In summary, the reporter found that the hot tubs were not too large and heavy to be moved with relative ease, which was an indication of their lack of permanence. Neither were they physically attached to the decking nor to the ground in any substantial way and no building work was involved in their installation or relocation. On this basis, he found that the hot tubs were chattels (moveable property) and that their installation and relocation did not and would not involve any material operation. Neither, he judged, had any change of use taken place because their use was clearly ancillary to that of the lodges as holiday accommodation or as a permanent residence. Consequently, the hot tubs did not require planning permission, he concluded.

Section 24.2 of DCP Online covers static holiday caravan parks and section 24.1 covers residential park homes.

The heart of the matter

A neat summary of the nature of a condition precedent can be found in an appeal seeking an  LDC to confirm that a house in Bedfordshire had been erected without planning permission (DCS Number 400-019-565).

The original permission for the house carried a condition to the effect that a turning space for vehicles should be constructed within the curtilage of the premises in a manner to be approved in writing by the planning authority before it was occupied. No details for the turning space had ever been submitted.

The inspector recorded that whether a failure to discharge a condition in advance of development starting results in a material breach of control resulting in unlawful development has been considered by the courts. In F G Whitley & Sons v SSW and Clwyd CC [1992], he noted, the Court of Appeal had said that the only question to be asked was whether the development was permitted by the planning permission read together with its conditions. If the development contravened the conditions it could not be properly described as commencing the development authorised by the permission. However, in the more recent R (oao Hart Aggregates Ltd) v Hartlepool BC [2005], he continued, it was held that a distinction has to be drawn between a condition which requires some action to be undertaken before development is commenced and a condition which expressly prohibits any development taking place before a particular requirement has been met. The judge, the inspector explained, took the view that even so it is necessary for the condition both to be expressly prohibitive of commencement of development and to go to the heart of the permission. Only when both tests are satisfied is it a condition precedent to which the Whitley principles apply and where the development would be development without planning permission.

Applying these principles to the case before him the inspector determined that to commence development of the approved dwelling in the absence of agreed details of the turning space would not have been a breach of the condition. Non-compliance with the condition would not have occurred until and if the “premises” (the dwelling) were occupied with those details not having been approved in writing. Thus, he reasoned, a breach of control such as that set out by the appellant was a breach of the planning condition but not one that threatened the heart of the planning permission for the dwelling. Any breach of that condition did not make the whole development unauthorised. The condition, he determined, was not a true ‘condition precedent’.

The inspector concluded that the construction of the dwelling without complying with the condition did not have the effect of making the whole development unlawful. Accordingly, the council’s refusal to grant a certificate of lawful use or development in respect of the erection of a dwellinghouse constructed without planning permission was well-founded and the appeal therefore failed.

More on Whitley and Hart, together with other court cases relevant to this issue, can be found at section 6.342 of DCP Online.

Brexit woes

In Oxfordshire some allowance has been made for the unsettling impact of Brexit, where an inspector has extended permission for the retention of eight staff caravans at an hotel beyond April 2019, allowing the business time to arrange alternative staff accommodation following the country’s departure from the EU (DCS Number 400-019-891).

The inspector considered that the form and shape of the caravans was starkly at odds with the traditional architectural style and palette of materials of the neighbouring hotel and houses in the village, and appeared extremely visually intrusive when viewed against the backdrop of the adjacent hedgerows. Nevertheless, in light of the potential harm to the business, and the forthcoming departure of the UK from the European Union, he took the view that the owner of the hotel should be given an opportunity to undertake an appropriate review of its staff accommodation needs. As a consequence, he considered it reasonable for the temporary period to be extended to two years from the date of his decision.

The inspector concluded overall that material considerations relating to the economic and operational needs of the business outweighed the scheme’s conflict with the development plan, and the corresponding environmental harm generated, but only in the short-term.

Examples of conditions attached to hotel use can be found at section 16.54 of DCP Online.

An axed annexe

An inspector has granted permission for independent use of a granny annexe in the Devon countryside in line with a revision to the NPPF (DCS Number 400-019-912).

Planning permission had been granted in 2003 for the reconstruction of a dwelling with granny annexe. The permission was subject to a condition that the annexe should not be used as an independent unit of residential accommodation separate from the house, in accordance with the development plan which sought to protect the countryside.

The inspector considered that the site was physically disconnected from any community facilities. She noted, however, that applications for proposed development should be determined in accordance with the development plan unless material considerations indicate otherwise, and one such consideration, she held, is the expression of Government policy. She recorded that Paragraph 79 of the updated Framework states that isolated homes in the countryside should be avoided unless, amongst other things, the development would involve the subdivision of an existing residential dwelling. She explained that this exception is a recent addition to the Framework following its revision in July.

The inspector found that the proposal would constitute the development of an isolated home in the countryside for the purposes of Paragraph 79. However, the proposal would divide the existing residential unit into two houses. She determined that there was, therefore, no doubt that it would involve the subdivision of an existing dwelling. Consequently, it was her view that the exception contained in paragraph 79(d) of the Framework, namely that the subdivision of an existing dwelling is acceptable in isolated locations, applied.

The inspector remarked that the Framework sets out a clear and recent statement of the Government’s policy in respect of the acceptability of residential subdivisions in isolated rural locations. As such, she held that it was a material consideration that carried substantial weight in her decision and, in the particular circumstances of the case, outweighed the conflict with the development plan. She deleted the condition.

Further information on granny annexes can be found at section 10.2 of DCP Online.

Marvellous minibeasts

All sorts of fun facts can be derived from planning appeals, and it was the behaviour of parasites that resulted in a successful appeal against the refusal of prior approval for a barn conversion in Devon.

In this case (DCS Number 400-019-582) the council contended that, irrespective of whether the agricultural use was an agricultural business on the relevant date (20th March 2013), there had been an intervening change of use which disqualified the building from conversion under Part 3, Class Q of the GPDO. The council’s concern related to horses which were observed by the case officer in the barn, the inspector noted. The appellant explained that these animals were retired and spent much of their time outside. Information was provided to show that grazing sheep and horses alongside one another within an organic farming system can assist in grassland management and reduce sheep fatalities due to parasites.

The inspector saw nothing to suggest that the horses were being kept for recreational purposes. They were unshod and there were no signs of equestrian paraphernalia or feed. He was thus satisfied that the horses were serving an agricultural purpose, and their housing within the building whilst not grazing did not trigger a material change of use to equestrian or a mixed use. He concluded that the building qualified for change of use to a dwelling under Class Q.

Section 4.3423 of DCP Online concerns change of use under Part 3 of the GPDO.