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How to get an open market dwelling in the countryside – Part 2

An earlier Blog (How to get an open market dwelling in the countryside) gave examples of cases where agricultural occupancy conditions had been lifted from farm dwellings, thereby resulting in unrestricted rural properties. A recent successful appeal case (DCS Number 400-011-117) involves the lifting of a holiday occupancy condition from a rural property. Permission had been granted in 1991 for the conversion of a Milk Marketing Board sub-base in the Wye Valley AONB to holiday accommodation. The permission carried a condition stating that it should only be occupied for a period not exceeding four weeks for any single letting and a return within four weeks by the same household was not permitted. Holiday use continued from around 1995 to 2008, the inspector noted. The appellant had not provided detailed information to indicate that a holiday let was no longer viable, although it was stated that there is a lack of demand in the winter months for holiday lettings in the area. The property had also been marketed for sale for two years. The inspector agreed with the council that the asking price was high but noted that the appellant had been willing to negotiate.

The inspector reasoned that due to its isolated rural location, the proposal would be contrary to the general principles of paragraph 55 of the Framework. Nevertheless, he considered that this was tempered by the fact that the proposal related to the removal of an occupation restriction for an existing property that had been vacant for a number of years. As such, he took the view that it could be considered in terms of the reuse of a redundant building due to the period of time that had elapsed since it was last used as a holiday let. He concluded that the proposal would bring a vacant property back into a beneficial use thus giving rise to a very small increase in the supply of housing and potentially supporting the local tourist economy.

So, there you have it. Leave a holiday let empty for long enough and you get an open market dwelling in glorious countryside. Neither lack of viability nor appropriate asking price need be proven.

The following DCP chapters are relevant: 4.4262 and 9.541

‘Isolation’ – Now we’re getting somewhere

Readers might recall the contrasting definitions of ‘isolation’ found in two appeal decisions set out in an earlier Blog (As Eurovision approaches….) Another more recent decision (DCS Number 400-011-110) is very useful in offering some insight as to how we might clear this matter up.

This case involved the erection of a house outside a village settlement boundary. The inspector recorded that “Paragraph 55 of the Framework specifically addresses the provision of housing in rural areas. It states that housing should be located where it will enhance and maintain the vitality of rural communities by avoiding isolated homes in the countryside unless there are special circumstances. The Framework does not define the meaning of ‘isolated’.” The inspector decided that “there are two main aspects to be assessed when considering ‘isolation’, these being whether the appeal site is physically isolated relative to settlements and other built development and whether it is functionally isolated relative to services and facilities.” He did not find the site to be physically isolated but he did believe that the development would be functionally isolated.

Obvious, really, when you think about it. Might this approach be usefully employed to improve clarity and fairness in future decision-making? We hope so.

The following DCP chapter is relevant: 9.23

On conditions requiring agreements

A proposal for the erection of two houses within 5km of the Thames Basin Heaths Special Protection Area (SPA) failed, an inspector finding no means to secure a financial contribution towards offsetting the impact on the SPA (DCS Number 400-011-084).

The Thames Basin Heaths SPA is an internationally designated site of nature conservation importance, its ground nesting birds being of special interest. Mitigation measures are normally required in the form of contributions towards Suitable Alternative Natural Greenspace (SANG) in order to ensure that recreational pressure from additional development does not have any significant effect on the special interest features of the SPA.

Under Regulation 123 of the CIL Regulations, however, a planning obligation may not be taken into account if it would fund an infrastructure project for which there are already five or more obligations, and the council confirmed that the only SANG with any capacity to provide mitigation had already received more than five financial contributions. As an alternative, the council suggested the use of a condition requiring the appellant to enter into a land management agreement, but the inspector recorded that the Planning Practice Guidance makes quite clear that a condition limiting the development that takes place until a planning obligation or other agreement has been entered into is unlikely to be appropriate; such conditions should only be used in exceptional circumstances in more complex or strategically important development. The erection of two houses did not seem to her to fall within this category. Planning permission therefore could not be granted, she decided, notwithstanding the lack of harm to the character and appearance of the area.

This case contrasts with (DCS Number 400-010-764), the subject of DCP Blog Where there’s a will….. In that case the only obstacle which stood in the way of the residential conversion of offices proceeding was the need for an obligation to prevent future occupiers applying for or being entitled to residents’ parking permits. The inspector was satisfied that a negatively worded condition which prevented the development proceeding until an obligation was entered into was appropriate in the circumstances.

Clearly, it is a matter of judgement for the inspector as to what constitutes exceptional circumstances, but if the lack of a means to prevent residents applying for parking permits constitutes exceptional circumstances, then the lack of a means to secure mitigation to offset impact on biodiversity ought also to constitute exceptional circumstances, oughtn’t it?

The following DCP chapter is relevant: 4.43

Cheque payment fails to start the clock

An inspector decided that a cheque payment for a prior approval application failed to start the clock ticking and as a consequence the council had made its decision within 56 days (DCS Number 200-004-820).

A certificate of lawfulness was sought at appeal following the refusal of the prior approval application. The prior approval application related to the conversion of offices in north London to flats under the GPDO. The appellant submitted the application on 26 June 2014 with a cheque. The council had a policy of not accepting cheques, however, and the appellant was requested to make a more ‘immediate’ form of payment. The appellant having done so, the application was registered on 4 July 2014. The inspector recorded that if the application was valid on 26 June 2014 the council’s decision would have exceeded the 56 day limit and if valid on 4 July 2014, the decision would have been made within the 56 day limit. He took into consideration The Town and Country Planning (Development Management Procedure) (England) Order at the time of the application and as revised in 2015 for planning applications which makes specific reference to payment by cheque, noting that they should be taken as payment. However, there is no provision in the GPDO for how payments generally, and payments by cheque in particular, should be handled, he noted. Without the statutory requirement he found it reasonable that the council should be able to choose the method of payment for prior approval applications. Therefore, the application was refused within the appropriate time and the appeal failed on this ground alone.

Opinion: This is another example of a discrepancy between the planning application regime and the prior approval application regime. It’s time this was looked at properly. Seriously.

The following DCP chapter is relevant: 5.152

Another note on record-keeping

A north Wales resident’s challenge to the local council’s decision that an environmental assessment was not required for two wind turbines failed, a High Court judge deciding that the planning officer was able to provide an accurate account of the information that had been taken into consideration in its decision (Jedwell v Denbighshire County Council [10/3/2016]).

The judge noted that the council was required to give adequate reasons for not requiring an environmental assessment after a negative screening decision in accordance with Mellor v Secretary of State for Communities and Local Government [2010]. He held that it was important for all authorities to maintain a record of the reasons for issuing a negative screening opinion so that this could be provided on request. If reasons could be provided, he added, the courts would be slow to quash permissions. If, however, no contemporaneous reasons were forthcoming, the courts might well quash a decision unless the planning authority could show that the decision would have been the same. In the case before him, he was satisfied adequate reasons had been provided and it was not appropriate to grant the claimant’s request because no prejudice had arisen.   

Local authorities might wish to check the extent and nature of the information being kept on record in the light of this ruling.

The following DCP chapter is relevant: 5.153

One for Pseuds Corner

Private Eye would love this – permission has been denied at appeal for a ‘non-existent’ extension to a listed farmhouse in Oxfordshire (DCS Number 400-011-045).  

The extension would be a low slung single storey flat roof structure and would infill a gap between the farmhouse and the existing structures of a barn, granary and dairy. The structure would measure some 17m long and would have a modern design utilising glass, corten steel and ashlar stone. The inspector noted ‘the design principles and aim of creating an ‘ephemeral’ and non-existent building’. However, he decided that the construction of the structure in the middle of the open space would have an adverse effect on the coherence as a whole of the historic farmstead and would not enhance the current plan form and context of the farm.

We can grasp ‘ephemeral’ as a design principle but ‘non-existent’ is testing us.

The following DCP chapter is relevant: 4.13

Curiouser and curiouser

The confusion here in relation to the prior approval procedure continues. Here is a multiple choice quiz:

What should a council do if it does not believe the proposed development notified in a prior approval application is permitted development. Should it:

a) decline to determine the application (the council’s approach in DCS Number 400-010-510).

b) (assuming the development complies with the relevant GPDO conditions) approve the application but notify the applicant that the development is not permitted development (the inspector’s ruling in DCS Number 400-010-510).

c) refuse the application (the inspector’s ruling in DCS Number 400-010-959); see below.

In (DCS Number 400-010-959) the inspector declined to issue a lawful development certificate for the change of use of offices at a nursery in Bedfordshire to five dwellings. The appellant had previously applied for prior approval for the development and the council’s decision notice had confirmed that prior approval would not be required. However, an advisory note was attached to the decision setting out the council’s view that the proposal would not constitute permitted development on the basis that the buildings did not fall within Class B1(a) of the Town and Country Planning (Use Classes) Order 1987. Sharp-minded readers will note that this is in line with the inspector’s ruling in (DCS Number 400-010-510). The appellant contended, however, that the council could have refused the application for prior approval if it was of the opinion that the existing use of the buildings did not fall within Class B1(a). In his view, the fact that the council had issued a decision confirming that prior approval was not required meant that the development would be lawful. In order to confirm this point, he sought an LDC. In this case, the inspector ruled that it would have been possible for the council to refuse the application for prior approval on the grounds that the existing buildings were not in use within Class B1(a) on the appointed date. He appreciated that the way in which the decision was set out might have caused uncertainty for the appellant but ruled that the council’s failure to refuse the prior notification application did not dictate that the proposed change of use would have been lawful.

Opinion: Whilst at first sight these differences might appear to be no more than procedural irregularities they have led to inconsistent and unfair decision-making. It’s time it was looked at properly.

The following DCP chapter is relevant: 4.34

Does that make sense?

Readers might recall mention in this blog (Joined-up government?) of a case in which costs were awarded against a Devon council after it refused a prior approval application for a barn on the grounds that it would not be located in an agricultural unit (DCS Number 400-010-510). The council believed that the primary use of the land was equestrian. Such a decision was not an option for the council under the GPDO, the inspector ruled.

In another decision, however, a Surrey council’s decision was upheld after it refused a prior approval application for a barn on the grounds that it would not be located in an agricultural unit (DCS Number 400-010-883). The inspector was not satisfied that there was evidence of an existing agricultural trade or business. Accordingly, she upheld the council’s decision.

Unh?

The following DCP chapter is relevant: 22.1112

How to avoid sequential testing

An inspector has granted permission for a swingers club in a former agricultural building in Bedfordshire (DCS Number 400-010-769), deciding that conflict with the development plan is outweighed by other material considerations.

The council argued that the site is not in a sustainable location for the use due to its remote countryside location, and furthermore that the facility is a ‘town centre use’ and no sequential test had been submitted to demonstrate that there are no more sequentially preferable sites.

The inspector, however, reasoned that the reuse of the former agricultural building has a degree of sustainability. He also attributed weight to the appellant’s contention that the nature of the use is such that users of the facility prefer a discreet location, where there is a degree of anonymity. Whilst this might be possible in more urban or town centre locations, in his opinion it would be less likely to be the case. In addition, the inspector accepted that the use is likely to attract individuals and couples from further afield than the local area. Consequently, he considered it unlikely that they would use public transport to access the appeal site, even if were located in a town, and the fact that the use operates until 03:00 hours also added weight to the appellant’s argument that, irrespective of its location, the use of public transport is unlikely to be attractive, or even available, to his customers.

The following DCP chapters are relevant: 4.19 and 18.1314

Standard conditions for wind turbines

It can sometimes be difficult for the non-techie amongst us to draft or suggest conditions suitable for dealing with techie matters.

In (DCS Number 400-010-475) it was the potential impact of a wind turbine on broadband reception that was at issue. The proposal concerned a farm turbine in Carmarthenshire. Grants had been provided by the Welsh Government and the council to support the take-up of a broadband service provided by a private company.  The company raised concerns that the proposal would impact on their ability to deliver the service and could impact on communications links that provide a community Wi-Fi service in the area. In the absence of conclusive evidence on the matter the inspector decided that the best answer would be to attach a condition to the permission, reasoning that broadband speed tests are widely available and concerned individual customers should be able to demonstrate that problems had arisen as a result of the construction of the turbine. Accordingly, the following condition was imposed, modelled on a condition used in Norfolk.

“No turbine shall be erected until a written scheme to secure the investigation and alleviation of any electro-magnetic interference to broadband reception caused by the operation of the turbine has been submitted to and approved in writing by the Local Planning Authority. The scheme shall provide for the investigation by a qualified person acceptable to the Local Planning Authority of any complaint of interference with the existing broadband signal or any loss of broadband signal at a building which lawfully exists or had planning permission at the date of this permission where such a complaint is notified to the developer by the Local Planning Authority within 12 months of the First Export Date. Where any impairment is determined by the qualified person to be attributable to the wind turbine, then details of mitigation works shall be submitted to and approved in writing by the Local Planning Authority and shall be implemented in accordance with the approved scheme within 60 days of the notification of the complaint to the developer.”

The inspector modified the condition used in the Norfolk decision (DCS Number 200-000-238) as it contains a clause (see below) specifying that the impairment to broadband must be of a degree that makes the current broadband service inoperative and that a comparable, alternative broadband service is not available.

“No turbine shall be erected until a written scheme to secure the investigation and alleviation of any electro-magnetic interference to broadband reception caused by the operation of the turbine has been submitted to and approved in writing by the Local Planning Authority. The scheme shall provide for the investigation by a qualified person acceptable to the Local Planning Authority of any complaint of broadband loss at a building which lawfully exists or had planning permission at the date of this permission where such a complaint is notified to the developer by the Local Planning Authority within 12 months of the First Export Date.  Where any impairment is determined by the qualified person to be attributable to the wind turbine, and that such impairment is of a degree that makes the current broadband service inoperative and that a comparable, alternative broadband service is not available, then details of mitigation works shall be submitted to and approved in writing by the Local Planning Authority and shall be implemented in accordance with the approved scheme within 60 days of the notification of the complaint to the developer.”

In the Carmarthenshire case there didn’t appear to be any alternative broadband service. The inspector therefore did not agree that the impairment needed to be so severe as to render the current broadband service inoperative because the quality of broadband was a critical issue for businesses in the area.  He therefore deleted this clause from the condition.

Local authorities might find it useful to pin these conditions to the end of their lists of standard conditions.

The following DCP chapter is relevant: 26.5327