The following case concerns the construction of a basement under a new house in the Royal Borough of Kensington and Chelsea. Readers might be aware of the Borough’s progress towards the earth’s core in the wake of ever increasing surface land and property values, and a Compass search will reveal innumerable cases where neighbours have raised concerns about the effect of basement construction on the structural integrity of their properties. In DCS Number 400-010-067, however, it was highway safety which was the principal matter of contention.
The inspector was concerned that during the construction of the basement there was potential for significant harm to road traffic flow, parking and safety due to the movement of construction vehicles. He reasoned that this was particularly so given the narrow, enclosed nature of the mews with significant demand for car parking and only narrow entrances at either end. He observed that the entrances were only negotiable by relatively small vehicles, requiring concrete to be transferred from large delivery lorries outside the mews itself. Whilst he found that the appellant had clearly given some consideration to all aspects of construction traffic management, the submitted draft construction traffic management plan nevertheless failed, in practice, to demonstrate that the construction of the basement would not result in unacceptable harm to road safety.
The following DCP chapter is relevant: 12.211
As planners we frequently use the term ‘contemporary’ but ought we to pause in order to consider what we mean, exactly?
The Concise OED defines ‘contemporary’ variously as ‘living, occurring or originating at the same time’ and as ‘modern in style or design’. In an appeal case concerning the redevelopment of a house in Surrey with a pair of semis (DCS Number 400-010-054) the inspector interpreted the meaning of ‘contemporary’ as used within a core strategy policy. The appellant took the view that the proposal for a building with a flat roof, large windows and a horizontal emphasis was innovative contemporary design and therefore gained support from the policy. The inspector, on the other hand, favoured a somewhat more literal interpretation: ‘In my experience, contemporary design can be defined as design that addresses contemporary matters such as current regulations, site constraints, fashions and functionality, and can be an interpretation of many styles from the more traditional to modernism.’
Perhaps this is why the term is not to be found in the NPPF.
The following DCP chapter is relevant: 4.132
An inspector rejected a prior approval appeal relating to the extension of a barn conversion near Huddersfield (DCS Number 400-010-006), finding that planning permission was required. Planning permission had originally been granted for the adaptation of the barn to extend the existing dwelling and was subject to a condition which stated that ‘notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 the barn as converted shall not be extended nor shall any windows or doors be inserted other than those shown on the plans hereby approved unless otherwise agreed in writing by the local planning authority’. The appellant argued that the condition was not enforceable because it referred solely to the 1995 GPDO and that has now been superseded by the 2015 GPDO. The inspector explained, however, that Section 17 of the Interpretation Act 1978 meant that the existing condition relating to the 1995 GPDO should be construed as if it related to the 2015 GPDO.
Assuming the inspector is correct in this matter, it appears that references commonly found in standard planning conditions to future amendments to the GPDO are superfluous and as such, arguably, ought to be deleted.
The following DCP chapter is relevant: 4.4261
As spatial planners we are very aware of the locational aspect of sustainability but in a recent case in rural Warwickshire the social aspect of sustainability was emphasised.
In allowing a new house on the edge of a village (DCS Number 400-009-976), an inspector emphasised the social benefits that it would bring. The inspector acknowledged that the village had a limited bus service and, given its location within the countryside, it was inevitable that residents would revert to using the car. However, she considered the social benefits associated with the development to outweigh any potential harm caused by the additional traffic movements associated with one house. It would also help meet the council’s requirement for additional housing.
The inspector noted that the village had an active social life and a visiting library, and shared some of its services with a larger village about three kilometres away. The larger village had a shop, a new village hall and a primary school. Whilst the proposal would be for one house, she considered that any amount of development within the village would help support the social activities in the village and therefore help maintain the vitality of the local community. Furthermore, being only three kilometres away, the development would bring similar benefits to the larger village and therefore help support the social wellbeing of the area. In this respect the inspector referred to a section of Paragraph 55 of the NPPF which promotes development in rural areas, provided it will ‘enhance or maintain the vitality of rural communities, for example where there are groups of smaller settlements, development in one village may support services in a village nearby.’
The following DCP chapter is relevant: 4.111
Retrospective listed building consent has been refused for the painting of the exterior of a ground floor Glasgow bar in a burgundy colour (DCS Number 400-009-896). The appellant explained that since taking on the lease in 2012 the business had attracted core regulars but had struggled to attract passing trade, customers having indicated that a common problem was identifying the bar as a separate entity from the hotel above (…and that was before they’d had a drink?! Anyway…). Since the burgundy paint was applied business in the bar had increased by about 30 per cent. The reporter took particular exception to the clash between the burgundy colour and the cream colour of the hotel.
The overall result might be something of an assault on the eyes and, of course, the council and the reporter are charged with considering the impact on the listed building as a whole. It does seem a shame, though, to lose a spot of colour which might cheer up a dreich Glasgow day, could be regarded as a manifestation of the city’s well known brio, and has increased the viability of the business. Perhaps the city elders and their advisers will be able to use their ingenuity to find a creative and positive way forward.
The following DCP chapter is relevant: 27.2328
A 45m high wind turbine was allowed in the east Riding of Yorkshire (DCS Number 400-009-878) after an inspector decided that the proposal had community backing. Following the site visit in June 2015 the secretary of state issued a Written Ministerial Statement (WMS) in relation to wind turbines. This indicated that when determining planning applications for wind energy development local planning authorities should only grant planning permission if the site was in an area identified as suitable for wind energy development in a local or neighbourhood plan and it could be demonstrated that the planning impacts identified by affected local communities had been fully addressed and the proposal had their backing. Following consultation, the council received eight letters of objection relating to matters including landscape harm, cumulative impact, noise and shadow flicker. The inspector decided that any landscape harm would be very limited in extent, there was very little potential for other turbines to be seen in conjunction with the appeal proposal, conditions would ensure that noise levels were below recommended limits, and hedgerows and trees would mitigate against any limited potential for shadow flicker. On this basis the inspector decided that whilst the site was not within any area identified as suitable for wind turbine development the planning concerns expressed in the submissions from eight local addresses had been fully addressed. He reasoned that since the WMS stated that whether or not a proposal had the backing of the affected local community was a planning judgement for the local planning authority, by inference that judgement must also be for the inspector on appeal. He concluded that the concerns of a small proportion of the local community had been addressed and the scheme could be seen to have the backing of the local community as a whole in the context of the WMS.
Weighing the planning impacts of a development in the balance is one thing, however, while coming to the conclusion that it has community backing in the face of written objection is another. Would the local community ‘as a whole’ agree that the scheme had its backing or is this another example of community engagement fatigue? The inspector might have known the views of the silent majority but the latter conclusion would not seem unreasonable given that eight households objected to the wind turbine and eight households were overruled.
The following DCP chapter is relevant: 26.532
An inspector took a pragmatic view in respect of an enforcement notice requiring the removal of two caravans on the Norfolk coast which had been sited there following the destruction of the appellant’s bungalow (DCS Number 400-009-887). The bungalow had been destroyed by a tidal surge in December 2013 and the case appears to have an intriguing backstory: “I do not propose to refer in detail to the criticisms made by each side of the other. For example, whether or not the appellant could have foreseen the events that left her homeless when she purchased the property, and whether or not the actions of the council contributed to the coastal erosion that led to the loss of that property, does not alter the position in which she finds herself.” says the inspector.
The council sought a compliance period of six months. The inspector understood the council’s need to protect its position by initiating enforcement action. He agreed that the residential use of the site was not compatible in the long-term with its location within a countryside policy area, as undeveloped coast, and within a coastal erosion constraint area. He saw scope for compromise, however. In the exceptional circumstances of the case the appellant’s request to extend the compliance period to twelve months in order to secure alternative arrangements was not unreasonable, he determined.
The following DCP chapter is relevant: 4.5361
“In reaching my conclusion against the main issue I have taken into account that the proposal would create jobs, provide income and support a business.”
In a Manchester case (DCS Number 400-009-861) an inspector denied permission for a car showroom on a principal route into the city because it would harm the character and appearance of the area and prejudice the objectives of a regeneration masterplan. The site comprised two parcels of land adjacent to a hand car wash occupying a former petrol filling station. In the vicinity there was a mix of commercial uses, railway infrastructure and advertisement hoardings. Permission was sought for two years. Even in the context of a varied urban environment, the inspector decided, the layout of the site would lead to a poor quality form of development that would detract from the route to and from the city centre. Moreover, the site was bounded by a masterplan area which sought to deliver a programme of new housing, community facilities, highway improvements, landscaping, open space and infrastructure.
Presumably the appellants weren’t proposing to display Porsches but even so, the site was on a busy main road in a commercial area, it wasn’t in the regeneration area but next to it, and it was only a temporary permission that was being sought. The DCS team does wonder whether the bird in the hand really wasn’t worth the two in the bush that the regeneration plan might bring in this case. Perhaps there is an argument for saying that development might only be considered to prejudice a regeneration scheme when it is actually within the plan area.
The following DCP chapter is relevant: 4.1311
Day nurseries are often located within the residential areas which they serve and concerns raised by neighbours commonly relate to traffic generation and noise from children playing. In a Manchester case (DCS Number 400-009-857) the appellants wished to increase the number of children from seven to twelve and to extend the opening hours. Whilst the inspector was satisfied that noise transfer to the adjoining property could be addressed by means of acoustic boards along the party wall he was not convinced about the arrangements for outdoor play and the impact on the enjoyment of the adjoining garden. The appellant maintained that play times were staggered so that only small groups of up to four children would be outside at any one time – no different from children playing at a family home. A search of the Compass database reveals that a condition along these lines is frequently used in practice. In this case, however, the inspector came to the following conclusion; “Although a planning condition could be imposed, I am not persuaded that it would be enforceable due to the practicalities of detecting a contravention or remedying a breach”.
Given the speed at which small children run around it does seem that the inspector has a point here. If an enforcement officer is not to be stationed permanently on site the condition relies on neighbours monitoring the numbers of children playing outside, not a task which would contribute to the peaceful enjoyment of their property, which is what they were seeking to protect in the first place.
The following DCP chapter is relevant: 4.412
An inspector permitted the construction of a basement extension at a mid terrace house in the royal borough of Kensington and Chelsea subject to a condition that the works should be overseen throughout their duration by a chartered structural or civil engineer (DCS Number 400-009-842). Neighbours raised concern about structural damage to their properties and the inspector, in allowing the appeal, attached the condition “to protect the living conditions of neighbouring occupiers”.
It seems that there are three courses of action which the inspector could have taken here.
- He could have allowed the appeal, ruling that damage to other property is a civil matter which must be addressed under other legislation.
- He could have dismissed the appeal in the absence of a structural survey and programme of works convincing him that the development could be undertaken without damage to neighbouring property.
- He could have taken the course he did take.
How did the inspector decide, and on what basis? What matters influenced his decision? Was it the severity of the consequences should structural failure occur, was it vociferous opposition or concern from neighbours, was it the cost to neighbours of legal redress, not to mention heartbreak….
Again, it is possible to think of many situations where parallel issues are under consideration. Highway safety springs to mind. Guidance on when it is and is not acceptable to duplicate other legislation in the form of planning conditions would bring certainty to developers and local authorities alike. And certainty would save so many tears of frustration.
The following DCP chapter is relevant: 4.417