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Scale again – minor material amendments

The issue of scale was again given consideration in relation to an application for modifications to a proposal for the conversion of a building in Hertfordshire to a dwelling (DCS Number 400-011-865).

The planning authority had refused to vary a condition on the outline permission for the scheme which required it to be carried out in accordance with the approved plans. The Planning Practice Guidance advises that there is no statutory definition of a ‘minor material amendment’ but it is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved, an appeal inspector recorded. She noted that planning permission had been granted for a one bedroom single-storey dwelling.  The proposed amendments included: raising the eaves height by some 1.4 metres; raising the ridge height by some 1.2 metres; creating habitable roof space for an additional bedroom and bathroom; the insertion of two front dormer windows some 1 metre and 1.4 metres in width; the addition of a ground floor window; and the addition of a planting bed to the front and an increase in size of a central planter.

In the inspector’s opinion, the amendments would substantially alter the scale and nature of the approved dwelling. In particular, it would double the number of bedrooms. The increase in ridge height together with the proposed two front dormer windows would also appear substantially different from the approved roof structure with skylights.  Accordingly, she concluded that the proposal did not constitute a ‘minor material amendment’ under the Section 73 procedure and dismissed the appeal.

A common theme to note in this regard is that inspectors do seem to be comparing the scale of the proposed changes against the overall scale of the scheme.

The following DCP chapter is relevant: 5.135

On the definition of scale and layout

The following case provides useful guidance in respect of the definition of scale and layout in relation to reserved matters applications.

A Somerset council had costs awarded against it at appeal after refusing a reserved matters application on the basis that the mix of houses proposed, in terms of sizes and number of bedrooms, failed to reflect the identified local need within the sub-market housing area or the district as a whole (DCS Number 400-011-800).

The application sought the approval of reserved matters in respect of layout, scale, appearance and landscaping. The council contended that the issue of housing mix was relevant to the consideration of layout and scale.

The inspector decided that Article 2(1) of The Town and Country Planning (Development Management Procedure) (England) Order 2015 includes definitions which provide a helpful starting point and a legal basis for determining what can and cannot be considered at the reserved matters stage. He noted that the term scale is defined as “the height, width and length of each building proposed within the development in relation to its surroundings”, and that layout should be interpreted to mean “the way in which buildings, routes and open spaces within the development are provided, situated and orientated in relation to each other and to buildings and spaces outside the development”. He agreed that the number of bedrooms contained within a dwelling is proportional to its size. However, he found that it would be stretching a point to argue that a local planning authority has influence over the configuration of the internal accommodation, simply by virtue of its ability under the Order to exercise control over the external dimensions. The phraseology used within the Order indicated to him that the issues of scale and layout are principally concerned with the manner in which the buildings physically relate to one another and their surroundings and are not a mechanism for controlling the mix of housing.

Awarding costs against the council, the inspector concluded that housing mix was not a legitimate matter for consideration given the absence of any condition on the outline permission.

The following DCP chapter is relevant: 5.132

A note on the removal of ancillary occupation conditions

Readers might wish to be alerted to a recent appeal decision in which the inspector declined to remove an ancillary occupation condition on the basis that it would change the nature of the development (DCS Number 400-011-802).

Permission had been granted in 2005 for the conversion of a coach house in Devon to ancillary residential accommodation. As is usual, the permission carried a condition stating that the building should not be occupied other than for purposes ancillary to the residential use of the dwelling.

The inspector pointed out that the Planning Practice Guidance states that although a condition can be used to make a minor modification to a proposal, a condition that would make a development substantially different from that set out in the application should not be used. He reasoned that, by extension, this principle applies to a case where the removal of a condition would significantly change the nature of the development. The application had been made under section 73 of the 1990 Act and if he were to allow the appeal this would not lawfully amend the permission for the original development which would remain as conversion of the coach house to form ancillary residential accommodation. Accordingly, he concluded that the appeal must be dismissed.

The inspector explained that if the appellant wished to change the use of the ancillary accommodation to a separate dwelling, then it would be necessary to submit an application in these terms.

The following DCP chapter is relevant: 10.43

Ready for takeoff

The runway expansion contest between Heathrow and Gatwick pales into insignificance beside what a Cambridgeshire planning authority has been dealing with recently. An inspector has quashed an enforcement notice which required the use of a garden shed at a house as a flight simulator facility to cease, deciding that no material change of use had occurred (DCS Number 200-005-093).

The appellant had a keen interest in aviation, the inspector recorded, and had constructed a flight simulator based on the cockpit of a Boeing 737 within the shed. An adjoining room in the shed served as a workshop and also housed the associated computers. The shed also contained a small reception area with seating and a kitchenette. On the wall was a TV monitor on which the operation of the flight simulator could be viewed.

The appellant stated that he built and originally used the simulator for his own personal hobby purposes but extended the use to friends and family. He subsequently developed a website on which a range of flight simulator experiences were advertised commercially. The website indicated that the facility was open seven days a week from 09:00 to 19:00 and there were links to social media.

The inspector was of the view that the presence of a flight simulator in a garden shed is not a usual activity in a residential area. However, he judged that its use did not appear to have been at a level which had altered the residential character of the planning unit to a significant degree. He found that its use had minimal visual impact, its noise impact was at a low level when in operation, and the additional pedestrian and vehicular movements appeared to have little impact on the surroundings.

Nnnneeyaooumh!

The following DCP chapter is relevant: 12.838

PPS7 Annex A – gone but not forgotten

A recently decided appeal relating to a proposed farm worker’s dwelling in the county of Durham (DCS Number 200-005-060) brings us back to a Blog from February Nearly four years on and deleted guidance is still in use. In that Blog we noted inspectors’ unwillingness to let go of Annex A to PPS7 notwithstanding that this guidance has been deleted. In the Durham appeal the inspector noted that no accounts had been submitted to confirm the viability of the farm business. The appellant argued, however, that the Embleton Parish Council & Anor, R v Gaston [2013] case concluded that there is no need to produce financial justification for a farm dwelling. The inspector acknowledged that this judgment highlights that the test under paragraph 55 of the NPPF is different from that under Annex A of PPS7, in that it simply requires a judgement of whether the proposed agricultural enterprise has an essential need for a worker to live there or not. Nevertheless, she recorded that there is no indication that in making that judgement, the decision-maker does not need to take any account of financial evidence, and in fact in the Embleton case financial evidence had been submitted by various parties to the decision-maker.

Clearly, Annex A is still sorely missed by inspectors. Can’t we just let them have it back?

The following DCP chapter is relevant: 9.331

One man’s meat….

Following on from the discussion of matters of taste in Living the countryside idyll here is an inspector who is not imposing a particular taste, much as local residents might have wished him to.

The inspector raised no objection to the design of six three-storey holiday homes in Cornwall notwithstanding the council’s contention that the development would not look out of place in a film set for The Lord of the Rings (DCS Number 400-011-593). The proposal involved the redevelopment of an existing holiday let with six pods which, the inspector reported, loosely resembled windmills on raised plinths. The scheme also included wind turbines on the conical roofs of each pod. The design and use of external materials would be in striking contrast to the nearby buildings, the inspector observed. However, although some local residents described the village as a pretty Cornish village, the inspector took the view that there was nothing surrounding the site having any architectural significance or distinctiveness which would set an appropriate context for the proposal. The design of the pods was distinctive and whilst unusual, was not unattractive, he held. He concluded that it would meet the requirement in paragraph 17 [4] of the NPPF for high quality design.

The following DCP chapter is relevant: 9.537 

Living the countryside idyll

With the current vogue for all things vintage, handmade and homely it is no surprise to see a proposal for a new country cottage. However, a cottage style residence in a ‘traditional’ orchard in Warwickshire would appear incongruous in a village conservation area, an inspector decided (DCS Number 400-011-575).

The inspector considered that the introduction of a dwelling of essentially suburban appearance, notwithstanding genuflections to an agricultural lifestyle of a bygone age, would appear as a random insertion in the rural fringe of the conservation area and would neither preserve its character nor its appearance. The tidying up of the unkempt rural land might conceivably improve its appearance, if formality and tidiness were necessarily considered to be more desirable, he opined, but its essential character would not be enhanced. On the contrary, he considered that the somewhat suburban dwelling set within surrounding vegetation of contrived rural character would fail to overcome the artificiality of the proposed development in context, leading to an impression of incongruity.  The proposal could not be said to make a positive contribution to local character and distinctiveness, contrary to the exhortation of the NPPF, he concluded.

Whilst siding with the inspector in not wishing to see the Disneyfication of the countryside one could not blame the appellant, on reading this decision, for pointing to paragraph 60 of the NPPF which states “Planning … decisions should not attempt to impose architectural styles or particular tastes…” A new country cottage might not be to everyone’s taste but when thwarting dreams of living the rural idyll we need to reflect very carefully about whether it is justified in the context of the development plan and other material considerations, which must include full consideration of paragraph 60 of the NPPF.

The following DCP chapter is relevant: 9.1326

Housing land supply – you’re on your own

An inspector has allowed 30 houses outside a village in Cambridgeshire despite the council having an agreement with a neighbouring authority in respect of housing land supply (DCS Number 400-011-553).

Whilst acknowledging that it could not deliver a five-year supply of housing land, the council indicated that if looked at in the wider area, a five-year housing land supply could be shown, and pointed to a memorandum of understanding between the two councils. The inspector confirmed, however, that paragraph 47 of the NPPF is directed to each local planning authority, and it was not a case where a joint local plan had been submitted for consideration. Therefore, there was a requirement that each local planning authority individually needed to show a five-year supply of housing land.

Just to be clear.

The following DCP chapter is relevant: 7.131

Obesity and the origins of planning

Retrospective permission for a pizza and kebab takeaway in Gateshead was rejected, an inspector supporting the council’s endeavours to address obesity in its area (DCS Number 400-011-493).

The inspector noted that paragraph 7 of the NPPF explains the need for the planning system to support strong, vibrant and healthy communities by creating a high quality built environment that reflects the community’s needs and supports its health, social and cultural wellbeing. Paragraph 69 reiterates that the planning system can play an important role in creating healthy, inclusive communities. In line with this objective, a core strategy policy stated that the wellbeing and health of communities would be maintained and improved by controlling the location of, and access to, unhealthy eating outlets.

In a footnote the inspector acknowledged that the appellant was critical of this policy, arguing that it was outside the ambit of valid planning considerations. He pointed out, however, that  an important precursor to the first town planning Act in this country (the Housing, Town Planning, etc. Act 1909) was the Public Health Act of 1875. So, the planning and environment legislation that exists today has its origins in 19th century concerns about the health and wellbeing of the people.

A survey undertaken in 2012 found that 61 per cent of people in Gateshead were either overweight or obese, the inspector noted, and, according to the National Child Measurement Programme the prevalence of childhood obesity for 10 and 11 year olds in Gateshead was above the national average.

Recognising that the council was seeking to improve the wellbeing and health of residents by ensuring that new sources of unhealthy eating were carefully controlled, the establishment of the takeaway would run counter to those aims and the specific provisions of an adopted local policy, the inspector concluded.

This case reminds us of the political nature of planning and as always there is a difference of opinion. On the one hand there are those who object to government interference and on the other there are those who consider that the regulation of threats to our wellbeing is one of the functions of government. The inspector’s placing of this appeal case in an historical context provides a very useful perspective. He’s right, of course.

The following DCP chapter is relevant: 16.2321

Don’t try this at home

An inspector has upheld an enforcement notice requiring the demolition of an outbuilding used as three flats at a property in west London, determining that a lawful development certificate for the development was not genuine (DCS Number 200-004-993).

The story begins in 2012 when the council granted a LDC for a single storey detached garden outbuilding for use as a gym/games room/storage area. The appellant explained that he was later handed the decision notice that purported to grant planning permission for the use of the outbuilding as three self-contained flats by a contractor who claimed that he knew someone at the council who could obtain planning permission for that use. The appellant was not able to provide a date on which he was handed the decision notice, although he said that he did seek to verify the validity of the notice by reference to the council’s website, and provided a screenshot of the website showing the purported decision for use of the outbuilding as three flats.

The council explained that on 17 January 2014 a number of unauthorised changes were made to the records relating to the LDC for the gym. These changes were the subject of an investigation undertaken by the council in relation to a number of similar unauthorised changes to the planning records alleged to be made or potentially made by a former council employee. The council gave evidence to the inquiry to confirm that the investigation had concluded, and that there was sufficient reliable evidence to show that the purported decision notices were fraudulent. The inspector reasoned that the appellant could only have been handed the decision notice after 17 January 2014 which in turn cast doubt on the appellant’s recollection that he relied upon the information on the council’s website in deciding to construct the outbuilding. In addition, aerial photographs provided by the council showed the site in July 2013, at which time the outbuilding appeared to be either complete or nearing completion. Furthermore, unlike the application that resulted in the LDC being granted for the outbuilding for use as a gym/games room/storage area, there was no documentary record of an application for the use of the outbuilding as three self-contained flats. Similarly, there was no record of such an application appearing on the council’s weekly list. The inspector therefore did not accept the appellant’s claim that he was misled by the information of the council’s website, which could only have appeared after January 2014. He upheld the enforcement notice, requiring the demolition of the outbuilding in its entirety.

This is NOT the way to beat the system.

The following DCP chapter is relevant: 6.33