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Something and nothing

This one is a little bizarre but….an inspector has determined that a certificate of lawfulness cannot be used to certify that a site has no lawful use (DCS Number 200-007-885).

The inspector identified the main issue in the appeal as being whether s191(1)(a) of the Act can be used to confirm that a site has a nil use or whether its scope is limited to certifying that an actual existing use as opposed to no use at all is lawful.

The council conceded that the site had a nil use, the inspector recorded. It accepted that it would be lawful for the site to remain unused and that a nil use could not be enforced against. However, it submitted that s191 could only be used to certify that an existing actual use is lawful. S191(1), the inspector noted, provides that: “if any person wishes to ascertain whether (a) any existing use of buildings or other land is lawful … he may make an application for the purpose to the local planning authority specifying the land and describing the use ….”. Turning first to the wording of the statute, the inspector acknowledged that the relevant subsection of the Act makes reference to “any existing use” and it is broad in its scope. However, she did not consider that the word “any” can be divorced from the words “existing use” in subsection (a). The statute specifically requires there to be an “existing use”, she noted, and it was acknowledged that there was no use which could be attributed to the site. The inspector reasoned that whilst nil use is a well-established concept in planning law and parlance that does not, of itself, mean that it comes within the ambit of “any existing use”. It seemed to her that the term nil use is not an existing use at all but rather a shorthand phrase used to describe the situation where there is no actual use of the land that is lawful. Giving the wording of the statute its ordinary meaning, she considered that it must denote a use that actually exists and not the absence of any use at all.

The appellant complained that it was left with no statutory procedure to establish that the site had no lawful use. The inspector acknowledged that although planning legislation is intended to be a complete code that did at first sight appear to be the case in this particular instance. However, she reasoned that the absence of a statutory mechanism for formally confirming that a site has a nil use is perhaps not surprising given that a nil use simply connotes no use at all and as such would not amount to a use to which the s191(2) tests could sensibly be applied. She also reasoned that for a nil use there would be no need for a certificate of lawfulness to safeguard that state of affairs from enforcement action as there would be no breach of planning control against which such action could be taken.

The inspector concluded that the council’s deemed refusal to grant a certificate of lawful use or development in respect of confirmation that the site had a nil use was well-founded and that the appeal should fail.

Yes, this really happened.

Further information on certificates of lawful use or development can be found at sections 4.301 and 5.136 of DCP Online.

Building a picture

Paragraph 197 of the NPPF says:

“The effect of an application on the significance of a non-designated heritage asset should be taken into account in determining the application. In weighing applications that directly or indirectly affect non-designated heritage assets, a balanced judgement will be required having regard to the scale of any harm or loss and the significance of the heritage asset.”

What, though, is a non-designated heritage asset? It’s no use turning to the Glossary for help – it’s not there. As is so often the case in planning it is, therefore, a case of building a picture, and an inspector dealing with an appeal against the refusal of permission for four houses in south London has helped with the work (DCS Number 200-007-876).

The inspector noted that the site was not in a conservation area (and thus was not a designated heritage asset), but it was proposed to be. Having regard to the evidence set out in the conservation area appraisal he was satisfied that the area was of some historical significance. Thus, he declared “it is of sufficient interest to be considered in this appeal as a non-designated heritage asset.”

The inspector judged that the design of the properties was not intrinsically poor but held that it would not integrate suitably with its context. Consequently, he found that the development would appear as an overbearing and discordant feature to the detriment of the street scene and the significance of the non-designated heritage asset.

Section 4.3736 of DCP Online addresses the topic of emerging conservation areas.

A second bite of the cherry

An interesting point concerning the “second bite” provision of the Act has arisen in an appeal concerning an enforcement notice directed at the excavation of a trench at a house in Oxfordshire (DCS Number 400-019-599).

The inspector recorded that Section 171B(4)(b) of the Act provides for the taking of “further” enforcement action in respect of any breach of planning control within four years of previous enforcement action (or purported action) being taken in respect of the same breach. This is known as the “second bite” provision.

An enforcement notice had been issued by the council in December 2016 but had subsequently been withdrawn. The council claimed that the appeal notice, which was identical in its terms to the earlier notice, was issued under the “second bite” provisions of Section 171B(4)(b). The appellants disputed that it was a “second bite” notice, since the first notice was not one that had proved to be defective. The reason for its withdrawal, they said, was that it had not been properly served. As such, they argued, the first notice was a nullity and Section 171B(4)(b) would not operate so as to displace the normal four-year period for enforcement which had accrued by the time the second notice was issued.

The inspector found it unclear whether or not the council accepted that there was some defect in service but found it of little consequence as Section 171B(4)(b) engages when enforcement action is “taken”, and Section 171A(2)(a) makes clear that the point at which enforcement action is “taken” is at the “issue” of the notice, not its service. On the “nullity” point, she recorded that the courts (R (oao Lambrou) v SSCLG [2013]) have taken a liberal view as to the meaning of “purported to take enforcement action”. She reasoned that to take a more restrictive view would be to defeat the purpose of Section 171B(4) which is to provide a local planning authority with a further opportunity to enforce in cases where a notice does not run its course because of some defect or for some other reason. She determined that in the appeal case, even if the notice had been found invalid because of some failure in service, the council had nevertheless “purported” to take enforcement action in respect of the breach to which the second notice was directed when applying a liberal interpretation. The second bite provisions would still have been available, she decided.

The inspector concluded that the appeal notice was a “second bite” notice falling within the provisions of Section 171B(4)(b) and that it followed well within a period of four years from the issuing of the first notice. It was therefore not too late to take enforcement action.

There is further information about the second bite provision at section 4.5354 of DCP Online.

A narrow distinction

In one respect the planning system can be compared to the tax system. Tax avoidance might represent diligent financial husbandry, whereas tax evasion will land you in serious trouble. Similarly, avoiding the requirement for planning permission might be perfectly sensible; evading the need for planning permission is only for the foolhardy. The important thing is to recognise that there is sometimes a narrow distinction between the two. A recent appeal against an enforcement notice requiring the demolition of a garden room at a cottage in Hampshire (DCS Number 400-019-366) illustrates the point.

The appellants in this case contended that the garden room was a freestanding structure not attached to the dwelling as it was 29cm from the house. They maintained that it complied with the provisions of Part 1, Class E of the GPDO, rather than being an extension to the dwelling, to which Class A applied. Defending a claim against them for costs, the planning authority complained that the appellants had “undertaken a calculated and fragrant [sic] breach of planning control in an effort to circumvent policy strictures when it comes to extending development in the National Park.”

The inspector judged that the authority’s view that the structure had been designed and built with the intention of circumventing the planning system to secure a further extension to the dwelling was probably correct. Additionally, he recognised that works carried out subsequent to the notice being served might appear to some as a means of making the detachment of the structure from the house more apparent. However, and this is the important part, he explained that the authority’s concern about the appellants deliberately seeking to circumvent the planning system failed to take account of whether what had been done was actually lawful in the context of the relevant legislation. Had the authority accepted what the GPDO and the Technical Guidance actually say in respect of attachment to a building rather than applied their own interpretation, he continued, the appeals could have been avoided.

The enforcement notice was quashed, with costs being awarded to the appellants.

Section 4.3421 of DCP Online concerns GPDO Part 1 development.


Taken from a recent appeal decision (DCS Number 400-019-740):

“Consequently….the front extension would not be viewed as an insubordinate or disproportionate addition to the property….”

Glad to hear it. There’s nothing worse than a mutinous house extension.

Believe it or not

Believe it or not the revised NPPF has clarified an aspect of national planning policy. Yes, really! The Blog found the following in an appeal against the refusal of permission for the change of use of a house in southeast London to a day nursery in which highway safety was an issue (DCS Number 200-007-830):

“The applicability of the “severe” test at Paragraph 32 of the previous version of the Framework to considerations of highway safety was… discussed. However, Paragraph 109 of the revised Framework has clarified matters in this regard. It states that “development should only be prevented or refused on highways grounds if there would be an unacceptable impact on highway safety, or the residual cumulative impacts on the road network would be severe”. Accordingly, it is clear that the “severe” test does not apply to considerations of highway safety.”

There you go.

Highway safety at day nurseries is discussed at section 26.3344 of DCP Online.

Learning from experience

In concluding that a 30-dwelling redevelopment of a stable building, arena and hardstanding outside a picturesque village in Hampshire would not harm the setting of the countryside (DCS Number 400-019-585) an inspector referred to a fellow inspector’s definition of ‘setting’.

The council was concerned about the impact of the scheme on “the character and setting of the countryside by virtue of the proposed siting, scale and prominence in the landscape and specifically the number and scale and corresponding hard landscaping that would be necessary thereby giving the proposed development an unacceptable urban character.”

In (DCS Number 200-005-501) the inspector had defined setting as follows:

“In a conventional interpretation of the word this would mean the surroundings or environment of something or object. By my interpretation, particularly in a planning context, the term should express some element of experiential understanding or…the surroundings in which a settlement, or part of a settlement, is experienced…”

In the current appeal the inspector criticised the council for not explaining the term, noting that “the focus is on the alleged overdevelopment of the site manifested by dwellings being too large for the plots, poor ratio between buildings and landscaping with hard surfacing dominating and reinforcing a feeling of being too urban, particularly given the transitional nature of the site.” By contrast, he noted that the appellant provided convincing evidence based on an analysis of plot ratios and edge of village analysis that demonstrated that the scheme would not be out of kilter with other recent housing developments situated at similar edge of countryside locations in the village. In addition, the inspector analysed the points from which the the setting of the relevant part of the village was experienced and did not accept that from these views the site performed as a transition from village to open countryside.

Hopefully, next time the council will have learned from experience.

More on “green settings” can be found at section 7.1333 of DCP Online.

Clear intentions

Clerestory windows are high level windows. It’s an architectural term so might not be familiar to everyone. Evidently, it wasn’t familiar to an inspector dealing with an appeal against an enforcement notice relating to a new dwelling in Cheshire (DCS Number 400-019-522).

The notice required two high level windows serving the living room to be obscure glazed, and also required that the building should be completed in accordance with the submitted plan. Quashing the notice, the inspector found that the requirements contradicted each other, as the plan showed that the two windows would be “clear storey windows to living space”. Ignoring the wavy red line under “clear storey” (the DCP Blog might be elaborating a bit here) the inspector found that it was not clear on the face of the notice whether the two high level windows should be obscure glazed or not. She declared the notice to be so hopelessly ambiguous and uncertain as to be a nullity.

Poor old council.

The legal background relating to the framing of enforcement notices can be found at section 4.536 of DCP Online.

Joined-up thinking?

Aren’t we all supposed to be reducing energy use? If so, wouldn’t it be best to avoid sanctioning new development which relies on mechanical ventilation whenever and wherever possible? The reason we ask is that a recent appeal decision against the refusal of outline permission for two flats in Yorkshire appears to highlight a lack of joined-up thinking in the application of planning policy (DCS Number 400-019-524).

The appeal site in this case was within one metre of an industrial coach depot. The planning application was supplemented with a noise impact assessment which recommended that a ventilation system with a minimum attenuation of 23.1 decibels within habitable rooms was installed. The suggested systems for mitigation comprised either trickle ventilation or mechanical ventilation. The council asserted that the use of trickle ventilation was not considered to provide sufficient levels of ventilation for residential properties, but the inspector noted that she had been presented with no reasons why this was the case. She considered that both options would provide suitable ventilation and saw no reasons why either method could not be employed, deciding that the matter could be satisfactorily conditioned.

Concluding that the development would provide sufficient living conditions for future residents, the inspector found compliance with development plan policies which sought to deliver suitably located development that provided a quality setting for development and had no significant detrimental impact on the amenity of prospective users. She also found no conflict with the Framework which advises that development should be appropriate for its location, by avoiding noise giving rise to significant adverse impacts on health and the quality of life.

That might be so, and we are no engineering experts here on the Blog, but how does the use of mechanical ventilation square with sustainability objectives in relation to energy use?

Further examples of appeals where noise from industrial and commercial sources was an issue can be found at section 4.1614 of DCP Online.

Twice over

There is no reason why the curtilage of one dwelling cannot overlap the curtilage of another dwelling, an inspector dealing with an appeal against the refusal of a certificate of lawfulness for a dormer window at a house in Sussex has maintained (DCS Number 400-019-492).

In the case before him the side wall of the dormer window would sit on a party wall. The council contended that it could therefore not be permitted development because it would not be wholly within the curtilage of the appeal property, and permitted development rights only apply to development within the curtilage of a dwellinghouse.

The inspector explained that adjoining curtilages can, as McAlpine v SSE [1995] decided, overlap each other, and this was particularly relevant in a party wall situation where the result could be the collapse or partial collapse of both dwellings if the wall were removed. The party wall, he continued, was such an integral part of the two dwellings that there was no reason why their curtilages could not overlap because such small areas were involved.

Guidance on the definition of curtilage can be found at section 4.3444 of DCP Online.