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Nearly four years on and deleted guidance is still in use

Readers will recall that the NPPF swept away a raft of national guidance on 27 March 2012. Nevertheless, a particular section of PPS 7 is still in regular use. The inspector in (DCS Number 200-004-489) explains why:

‘The Framework itself contains no guidance on how to determine essential need for a rural worker to live at or near a site. However, although no longer government policy, Annex A of Planning Policy Statement 7: Sustainable Development in Rural Areas (PPS7), sets out a useful, tried and tested methodology for assessing whether there is an essential need for a rural worker’s dwelling on a holding. I see no reason to discount it as a useful tool in seeking to establish whether a permanent dwelling is justified.’

Inspectors are clearly not willing to give up this methodology, as a search of the Compass database will reveal, particularly, perhaps, as without it they are left with a policy vacuum.  Interestingly, it appears to stand alone in that it shows no sign of falling out of use over the passage of time. Exceptionally, perhaps it is time for it to be formally reintroduced to national guidance.

The following DCP chapter is relevant: 9.331

A case of interpretation

The following case (DCS Number 400-010-134) is interesting because it concerns a housing policy which was drafted in such a way that it was able to accommodate a change in housing need which has occurred over time.

We are, again, in the London Borough of Kensington and Chelsea. The appellant sought permission to convert two flats (one two-bedroom flat and one one-bedroom flat) to one three-bedroom flat. A local plan policy stated that development would be resisted which resulted in the net loss of five or more residential units. The appellant argued that his development was not contrary to this criterion as only one unit would be lost. The background was that prior to 2014 the council had taken the view that whilst amalgamations that resulted in the loss of five or more residential units required planning permission, the loss of four units or fewer normally did not. However, in August 2014 the council changed its stance in recognition of its increasing difficulties in meeting its housing targets, taking the view that the loss of any residential unit through amalgamation would require planning permission. Notwithstanding this differing assessment of housing pressures and when planning permission might be needed, the change was not reflected in any formal amendment to the policies of the adopted development plan, the inspector noted. Nevertheless, he was not convinced that the policy necessarily implied that the council would not resist developments which resulted in the loss of less than five residential units. He noted that whilst it was absolutely clear as to larger amalgamations, it was silent on those which resulted in a loss of four units or less. He concluded that the personal benefits to the appellant were in themselves insufficient to outweigh the public policy disadvantages of the loss of a unit of residential accommodation.  

Policy planners might be able to think of similarly drafted policies in their own local plans.

The following DCP chapter is relevant: 11.1

A reminder about residential barn conversions under Part 3 of the GPDO

A Dorset council ran into trouble after refusing a prior approval application for a barn conversion (DCS Number 400-010-112). The council asserted that the building was not being used solely for agriculture as part of an established agricultural unit on 20 March 2013 and thus failed to meet the criterion set out in paragraph Q.1(a)(i) of the GPDO. The inspector pointed to paragraph Q.1(a)(ii), however, which meant that if the building was not actively in use on 20 March 2013, but agriculture was the nevertheless the last active sole use, then the change of use would comply with the requirements of the GPDO. He found no evidence to suggest that the last active sole use was not agriculture.

Just to compound things, the council went on to decide that the change of use would not be permitted development on account of the location of the building. The inspector recognised that until the changes to the PPG in March 2015 there was uncertainty as to whether the location of a building should be taken into account in determining a prior approval. He accepted that when the decision was made in December 2014 it was not unreasonable to consider the locational aspects of the proposal. However, the March 2015 changes made clear that the fact that the site was in a location where the local planning authority would not normally grant planning permission for a new dwelling was no longer a sufficient reason for refusing prior approval. Not to review its position amounted to unreasonable behaviour.

Costs were awarded against the council on both grounds.

The following DCP chapter is relevant: 4.3423

Code for Sustainable Homes condition deleted

In a case involving the replacement of a bungalow with a new dwelling in Berkshire (DCS Number 400-009-897) the parties all agreed that a condition requiring the house to meet Level 4 of the Code for Sustainable Homes should be deleted. The appellant argued that due to the withdrawal of the Code following a written ministerial statement in March 2015 there was no practical case for the condition to be applied on development yet to commence. The council accepted that if the appeal decision was made after 1 October 2015 the condition should be removed. The inspector decided he had no reason to disagree with this view and noted that the site visit for the appeal took place after this date.

The following DCP chapter is relevant: 4.412

Anticipated permitted development

Here is a cut-out-and-keep case which provides evidence not only that permitted development rights do not apply to a development which has yet to be completed, but also that they cannot apply in anticipation of completion of the development.

The case concerns a basement extension in central London (DCS Number 400-010-068). The appellants sought a certificate of lawfulness stating that a rooflight would constitute permitted development, subsequent to the completion of the development. The planning inspector explained, however, that his assessment must be based on whether or not the operations proposed to be carried out would be lawful if begun at the time of the application. In this respect he referred to the decision of the High Court in R. (on the application of Townsley) v. Secretary of State for Communities and Local Government [2009] in which Mr Justice Collins stated “ “It seems to me quite plain that the GPDO cannot be used to effect a change in what is permitted by a planning permission when that planning permission is being carried out. The purpose of the GPDO is to allow alterations and extensions or amendments to an existing building which has already been constructed.” As the basement extension had not been constructed the inspector concluded that the proposed operations could not have been lawfully begun at the time of the application.

The following DCP chapter is relevant: 4.343

Is it just us, or is this one something of a game-changer?

Here is the story: an Essex council granted permission in 2008 for greyhound kennels in countryside identified as a special landscape area (SLA). That permission was never implemented and a bungalow was built instead. Retrospective permission for the bungalow was denied at appeal in 2011. Permission was sought again last year and this time it was granted at appeal (DCS Number 400-010-072).

The inspector found that the bungalow had a limited impact on the character and appearance of the area, being perceived as part of a wider enclave of built development which included a complex of farm buildings. He accepted that the site was in a relatively remote rural location, with poor accessibility, and a limited range of local services nearby. However, he held that this should not automatically preclude further housing development, as long as it could be adequately assimilated without causing harm to the character and appearance of the locality. He reasoned that significant parts of the district were predominantly rural and that a realistic approach was therefore required. The position with regard to housing land supply was contested but the inspector held that, whatever the position, the dwelling made a small contribution to the supply of housing.

So, does a realistic approach to housing supply mean that we have now arrived at the point where we can delete all of the following, once held so dear?

protection of the countryside for its own sake

development to be directed away from designated areas such as SLAs

housing generally precluded outside settlement boundary

development to be sustainably located

The following DCP chapter is relevant: 9.23

RBKC basement extensions

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

What do we mean by ‘contemporary’?

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

Action needed on standard GPDO condition?

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

The social aspect

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