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Solemnly and sincerely

Sometimes the art and science of planning can lie in being able to recognise when something is not quite right. A useful pointer with regard to the assessment of legal evidence can be drawn from a recent appeal against the refusal of a lawful development certificate for the use of adjacent land as a garden extension at a property in County Durham (DCS Number 400-019-049).

The inspector says “Contrary to the appellant’s assertions, the so-called affidavits provided do not appear to constitute statutory declarations as they do not contain the necessary form of wording set out in the Schedule to the Statutory Declarations Act 1835. Furthermore they appear to have been witnessed by a resident of” [the appeal property] “rather than a solicitor or commissioner for oaths. I therefore afford these documents limited weight given that there can be no sanction such as a fine or jail term if found to be untruthful.”

So, while we don’t recommend that you try to usurp the role of a planning lawyer, a useful preliminary test for a statutory declaration is as follows:

Firstly, put “Schedule to the Statutory Declarations Act 1835” in your browser. Skip the bits about church sidesmen, turnpike trusts and pawnbrokers – you probably won’t need that – and go straight to the wording at the bottom. It’s only three lines. Compare and contrast with the wording in front of you. Secondly, check if the document appears to be properly witnessed. Same surname as applicant/appellant or illegibility are not good indicators.

Examples of the use of statutory declarations can be found at section 4.535 of DCP Online.

Holiday time

It’s high summer so it must be time to talk about holiday cottages….

Notwithstanding his determination that a holiday cottage at a golf club in Bedfordshire was a dwellinghouse, an inspector decided that the necessary period for its residential occupation to become immune from enforcement was ten years rather than four (DCS Number 200-007-562).

Planning permission for seven holiday cottages had been granted subject to a condition that they should not be occupied by any one person for more than 28 days in any calendar year.

The council was of the view that the ‘holiday cottages’ would amount to dwellinghouses, that the description of the development alone would not be sufficient to restrict the use for holiday purposes, and it was the condition that was the defining factor. On that basis it contended that the residential occupation was in breach of the condition.

The inspector recorded that the question of whether a holiday unit is materially different from a dwellinghouse has been the subject of numerous judgments. He noted that in Sheila Moore v SSCLG [2012], the judge stated that whether the use of a dwellinghouse for commercial letting as holiday accommodation amounts to a material change of use will be a matter of fact and degree in any given case. There should be no assumption that the use of a dwellinghouse as holiday accommodation will always amount to a material change of use or that use of a dwellinghouse for commercial lettings can never amount to a change of use.  Having regard to the layout and use of the properties it appeared to the inspector that the seven units were undoubtedly dwellinghouses. He was not satisfied that there would be any substantive difference in the character or impact of the units whether they were in use for holiday accommodation or for permanent occupation. Accordingly, he was not satisfied that the description of the development alone would have been sufficient to prevent occupation as a permanent dwelling. In effect, he reasoned, planning permission was granted for seven dwellinghouses. A dwellinghouse falls within Class C3 of the UCO and, if no condition were in place to restrict occupancy, it appeared to him that the council would have been unable to enforce against any use that fell within that Class.

The inspector further recorded that the time limits for taking enforcement action are prescribed by section 171B of the Act. Subsection (2) states that where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach, and subsection (3) states that in the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach. He concluded that the planning permission had effectively granted consent for the erection of seven dwellinghouses. The use of those dwellinghouses was controlled by the condition. The breach had occurred when the appeal property was occupied in breach of that condition. Since that did not amount to a change of use subsection (2) of s171B was not applicable. Rather, the relevant time period for taking action was that set out in s171B(3) which is ten years. There was no dispute that the appellant was unable to demonstrate that the breach had continued for ten years at the time the notice was served, and accordingly the appeal failed.

We wish we could tell you that the situation was more clear cut but like many things in planning, therefore, the difference between a dwellinghouse and a holiday dwelling is fact and degree, fact and degree.

See section 9.541 of DCP Online for further information on holiday occupancy conditions.

Going with the flow

An interesting question before an inspector recently was whether the residential conversion of a subterranean water reservoir in Devon would constitute permitted development under Schedule 2, Part 3, Class P of the GPDO (DCS Number 400-019-003).

The council had initially refused permission on the basis that the reservoir was not considered to be, or have last been, used for B8 purposes as defined in the Use Classes Order. The council’s view was that the use was not a storage use in its own right but one ancillary to the wider distribution network of the water authority, and therefore a sui generis use. Having considered counsel’s opinion, however, the council revised its view, deciding that the storage of water was a B8 use, and in the absence of a reference in the Use Classes Order as to whether such storage was ancillary to a primary use or a use in its own right. In addition, in DCS Number 400-011-208 a service reservoir had been considered to fall within the B8 Use Class.

Given that there was common ground between the appellant and the council that the building was in Class B8 use, the inspector concluded that the change of use to Class C3 from B8 would be permitted development under Schedule 2, Part 3, Class P of the GPDO. Accordingly, she granted prior approval for the change of use.

Guidance on Part 3 changes of use can be found at section 4.3423 of DCP Online.

Care in the community

An inspector who extended the period for compliance with an enforcement notice directed at a single storey rear side infill extension at a house in east London (DCS Number 400-018-777) has articulated the considerations relevant to the assessment of personal circumstances.

The enforcement notice required either the demolition of the extension or modification to bring it into line with GPDO limits. The council had set a compliance period of three months whilst the appellant requested twelve months. He explained that this would allow time for him to have a kidney transplant, the new kidney being donated by his wife, and for a period of recuperation afterwards for both of them of at least nine months.

The inspector took the view that determining the time needed to comply with the requirements of an enforcement notice will always be a case-specific exercise. Understandably, given the circumstances, he gave a detailed account of the matters to be weighed in the balance: “ the health issues mentioned; the implications for the appellant of finding alternative space for the array of items and equipment in the extension; the possibility that the appellant may wish to check over matters with the Council if the option of following the GPDO is chosen, particularly with regard to walling and roofing materials, so that one breach is not replaced by another; the need to secure quotes, appoint a contractor and get the work fitted into that contractor’s schedule of work; the desirability of remedying the breach in a reasonable timescale and avoiding a situation whereby a compliance period is so long that it would be tantamount to the grant of a temporary planning permission; and the need to avoid unduly prolonging the harm being caused, particularly to neighbouring residents.”

The inspector judged that whilst twelve months would be excessive, a period of five months would be a more reasonable period for the appellant than three. He concluded that this would represent a proportionate response that struck a fair balance between the conflicting public and private interests in the case. He made it clear that the compliance period of five months started from after the notice took effect which was the date of the appeal decision.

Every now and then evidence of care and concern in the planning community will pop up and we think this is a rather good example.

Section 4.17 of DCP Online considers the extent to which the personal circumstances of private individuals  are material when making decisions on development management matters.

Kapow!

We hesitate to contradict an inspector but we feel we must comment on a ruling involving three superheroes in Warwickshire. This appeal was against a listed building enforcement notice which required the removal of Batman, Superman and Spiderman from the front elevation of a bar and restaurant (DCS Number 400-018-962). Batman and Superman were standing on a recess above the fascia at first floor level and Spiderman was climbing up the wall.

The appellant claimed that the figures were a temporary installation which were occasionally put outside, but kept inside in poorer weather. The inspector ruled, however, that the installation of the three figures had entailed operations of lifting and fixing in position that should be considered as works to the listed building. He reasoned that in order to install the figures it would have been necessary to lift them into position, quite possibly needing the use of ladders, or even temporary scaffolding. He decided that they had a dramatic effect upon the appearance of the building. He therefore concluded that they had resulted in a significant alteration to the appearance of the listed building, and had affected its special architectural and historic interest.

We feel we must point out that it is only Batman who lacks superpowers, and would therefore have used conventional means to scale the building. Superman uses his personal mono-directional gravity field to propel himself through the air and Spiderman uses wrist-mounted devices to fire adhesive webbing.

Information concerning alterations to listed buildings can be found at section 27.2 of DCP Online.

Crystallisation

‘Fraid we’re not talking about anything sparkly here. No, this is to do with the commencement of development. You might wish to make note of a distinction highlighted by an inspector in a recent appeal (DCS Number 200-007-575).

“… the case law which culminates in Orange PCS v Islington establishes that a permitted development right crystallises when commencement occurs. This right will not therefore be lost if a new development order comes into force.”

“In the case of prior approval, the rights crystallise when the prior approval is granted or deemed to be granted by the Council, not when development has commenced.”

More detail can be found in paragraphs 18 and 19 of the decision.

Section 4.34 of DCP Online concerns permitted development.

A ludicrous situation

When a planning inspector finds himself explaining that “We are forced into this somewhat ludicrous situation by the wording of the various Orders and Planning Acts ….” we must be in a serious mess. However, this situation arose in an appeal against an enforcement notice directed at a barn conversion on a farm in Worcestershire (DCS Number 200-007-575). The sequence of events leading to the appeal is this:

In 2014 the owner of the farm applied for prior approval to convert the barn to a dwelling. There was some dispute as to whether this was granted or the council failed to issue a decision, but in any event it was not disputed that prior approval was obtained. Before works began the farm was put on the market and sold at auction to the appellant with prior approval for a dwelling. The new owner then made two further prior approval applications in 2015 and 2016. These were refused by the council as they did not consider the land was in agricultural use on 20 March 2013 as required by Q.1(a)(i) of Part 3 of the GPDO. Believing he still had a valid prior approval from 2014 the new owner began work on the conversion as one of the conditions attached to the permission was that works must begin within three years of the grant of prior approval.

Having reviewed the evidence the inspector was not convinced that the agricultural use had ceased, as claimed by the council. He therefore concluded that the land was in agricultural use on 20 March 2013 so the prior approval was for permitted development. Having established the 2014 prior approval was granted by default and was for permitted development, the next question, he reasoned, was whether it was ever implemented. Works had certainly started within the three-year period but, as the council pointed out, the resulting building was quite different from that shown in the plans provided with the 2014 prior approval. The overall design had changed from a cottagey to a contemporary feel. The external appearance of the building was materially different from that shown on the plans, the inspector ruled, and he therefore concluded that it had not been converted in accordance with the 2014 prior approval application. It was common ground that the time limit for that application had expired and therefore the converted barn was unauthorised.

However…..it seemed to the inspector that while the works to convert the barn were unlawful, those works closely followed the applications made in 2015 and 2016. Those applications had been refused by the council who had mistakenly believed the land was not being used agriculturally at the required time, and neither refusal had been appealed. Had either of those applications been granted, as it seemed they should have been, the inspector reasoned, then the barn conversion would have been lawful.

Summing up the current situation, the inspector explained that if the appellant carried out the requirements of the enforcement notice to turn the dwelling back into a barn he would then be entitled to make another prior approval application under Class Q of the 2015 GPDO, which the council would not be able to refuse. He remarked that they were forced into this somewhat ludicrous situation by the wording of the various Orders and Planning Acts and, had there been a ground (a) appeal (a deemed planning application) he would have had no hesitation in allowing it. Because there was no ground (a), however, he found that the only way out of the impasse was for the appellant to make a s78 planning application showing the barn as converted. He extended the compliance period to twelve months in order to enable a planning application to be made and determined.

Ludicrous: absurd, ridiculous, farcical, laughable, risible, preposterous, foolish, idiotic, stupid, inane, silly, asinine, nonsensical.

Changes of use under Part 3 of the GPDO are covered at section 4.3423 of DCP Online.

Whatever happened to….

….Advertisement Appeals Inspectors?

The chief executive of the Planning Inspectorate has explained that a large part of the reason for the current delay in the handling of planning appeals is “the unexpected receipt of more than 1000 prior approval appeals for phone kiosks”. We can see how the jam has built up if DCS Number 400-018-743 is anything to go by. In this case an experienced inspector has taken over four sides of A4 to determine an appeal against the refusal of prior approval for a call box. No doubt Euro Payphone Limited was happy to have one of PINS’ top people dealing with its appeal but was it really necessary? The DCP Blog remembers when PINS had a small team of specialist Advertisement Appeals Inspectors. Given that it is no secret that the interest in phone kiosks arises largely from their function as structures for the display of advertisements, wouldn’t it be an idea to allocate a SWAT team of specialist inspectors to deal with the phone kiosk appeals?

Just an idea.

Part 16, Class A of the GPDO is set out at section 4.3429 of DCP Online and examples of telecommunications appeal cases can be found at section 28.1.

A fine line

An inspector determining an appeal against the refusal of planning permission for a new house on a paddock in Buckinghamshire (DCS Number 400-018-714) was faced with the not-unusual task of interpreting the meaning of a thick black line on the development plan proposals map. Here is how this inspector dealt with the problem:

“The appellant states that the ‘built-up area within the Green Belt’ designation (the ‘built-up area designation’) should be taken to include all land within the outside of the black boundary line shown on the Proposals Map and has supplied an enlarged plan to demonstrate the extent of this. However, whilst I recognise that the thickness of this line makes it difficult to be precise as to where the built-up area starts and finishes on the Proposals Map, it is my view that the intent of the draftsman and policy-makers concerned would have been to provide a recognisable and logical boundary that follows a combination of existing features on the plan and physical features on the ground. Furthermore, I am also of the view that the exact position of a boundary line in circumstances such as this is a question of planning judgement for the decision-maker, having regard to the submitted evidence and their own on-the-ground assessment.”

This seems like a sensible approach to us, and in this case the inspector decided that the boundary line for the built-up area accorded with a post and rail fence that divided the appeal site from the neighbouring dwelling. Wouldn’t it be a good idea, though, to delineate built-up area boundaries with a fine line in the first place?

Further appeal cases concerning disputed land use boundaries can be found in section 4.2 of DCP Online.

We said that

In November last year we said “it must be time to consider an amendment to Part O to require minimum floorspace provision”, in a Blog which highlighted the potential for substandard office-to-residential conversions under permitted development rights (Sauce for the goose).

A recent report from RICS – Extending Permitted Development Rights in England – has concluded in the same vein. The study found that the office-to-residential permitted development rights, introduced in 2013, have “produced a higher amount of poor-quality housing than schemes governed through full planning permission”.

The report suggests that office-to-residential change of use “should not be counted as permitted development in England”, or, if that would be a step too far, that government “might instead consider introducing more safeguards to the prior approvals process”. These might include “adding minimum space standards which would apply even to PDR schemes”.

As might be expected from such an illustrious body, the RICS study is a well-presented and illuminating document and we urge you to take a look.

Section 4.3423 of DCP Online sets out Part 3 permitted development rights and section 7.4338 concerns internal space standards.