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Full circle

We appear to have come full circle with regard to the definition of an isolated dwelling. Readers will recall that in Braintree District Council v Secretary of State for Communities and Local Government & Others [2017] the High Court judge found that “isolated” should be given its ordinary objective meaning of, “far away from other places, buildings or people, remote”. Also, that it was subsequently held in the Court of Appeal, in Braintree DC v SSCLG, Greyread Ltd & Granville Developments Ltd [2018] that, “…in its particular context in paragraph 55 of the NPPF, the word ‘isolated’ in the phrase ‘isolated homes in the countryside’ simply connotes a dwelling that is physically separate or remote from a settlement…”

So as long as a site is not far away from other places, buildings or people, planning permission should be forthcoming, right? No, wrong, there’s more to it than that, as a recent appeal case in Devon indicates (DCS Number 400-019-320).

In this case the inspector held that the location of the two proposed dwellings, being adjacent to one row of existing houses, roughly opposite another row of houses, and on the outskirts of the town, could not be said to be physically remote from places, buildings or people. However, she reasoned, it does not necessarily follow that a site that is not ‘isolated’ in the terms of paragraph 55 will be reasonably accessible to services when considered in the context of other requirements of the Framework. She was advised that the site was around 580m from the town centre, which she considered a reasonable walking distance in general terms. Nevertheless, she was concerned about the generally unattractive nature of the route. She considered, for example, that there was substantial potential for conflict between vehicles and pedestrians, even though traffic speeds might be generally low due to the nature of the road. Notwithstanding the reasonably manageable distance involved, therefore, she found that this would make walking an unattractive option for journeys into the town, including for parents with young children or pushchairs. Furthermore, the return journey would involve a significant and sustained uphill section.

The inspector concluded that, while the site was reasonably proximate to the town centre, its degree of accessibility to essential services by alternative modes was significantly limited.

She determined that the site was not a suitable location for dwellings having particular regard to accessibility for future residents to essential services.

National guidance on isolated homes in the countryside is set out in DCP Online section 9.231.

Getaway cars

Airport parking at six former agricultural buildings near Gatwick has been denied a lawful development certificate notwithstanding the appellant’s claim that the use was in line with the authorised storage use of the buildings (DCS Number 200-007-675). The go-to court case in these circumstances is Hickmet, referred to by the appeal inspector.

The inspector judged that the appeal turned on a consideration of firstly, whether the proposed use fell within Class B8, which the parties agreed was the lawful use of the site following the implementation of a 2007 planning permission. If it did not then secondly, whether the proposed use would be materially different from the storage use taking place that had resulted in the implementation of the 2007 planning permission. She recorded that the appellant proposed to use the buildings on site to store cars. He would enter into contracts with hotels that were unable to keep cars on site while patrons were away on holiday. Minibuses would take drivers to the hotels and then the cars would be driven in a convoy during off-peak times to the site and placed in one of the buildings. On average they would be stored for ten days and then they would be returned to the hotels using the same process in reverse. The buildings had the capacity to store 1200 cars.

The council questioned whether the proposed use actually amounted to the storage of cars, referring to the Court of Appeal decision, Crawley Borough Council v Hickmet Limited [1998], which drew a distinction between the storage of cars and the parking of cars. The council argued that the proposal would amount to a parking use and therefore would not fall within the Class B8 use. Furthermore, the parking use would be a material change of use from the existing lawful use as the Court of Appeal in Hickmet described the concepts of storage and parking as being mutually exclusive.

The inspector explained that in the Hickmet case it was held that ‘parking is when a car is left in a convenient place for the resumption of an interrupted journey or the start of the next journey’. It might be ‘short term, overnight or long term’. However, taking a car off the road because, for example, the driver is disqualified, or keeping cars on a site after manufacture before they go to be displayed at the dealers, would be storage. This is because ‘The notion of parking is that it is a temporary cessation from when the vehicle is in motion. A car is still in use when it is parked. It is probably not in use when it is put into store’. The inspector judged that the proposed use was more akin to the description given in the Hickmet case; the cars would be left in a convenient place until the start of the next journey which in all likelihood would be to take the owners home after their holidays. For these reasons the inspector concluded that the proposed use would not fall within Class B8 as it would not be a storage use.

Turning to consideration of whether the proposed use would be materially different from the authorised storage use, the inspector found that there was limited information from the appellant. He claimed the vehicle movements associated with the proposed use would not be materially different from the limit set down in the 2007 planning permission, she remarked, but did not provide any figures to support his assertion. On the evidence before her she concluded that there was insufficient information of any clarity to lead her to the view that a material change of use would not occur if the proposal were to go ahead. She concluded overall that the council’s refusal to grant a certificate of lawful use or development in respect of the use of existing buildings for the storage of cars for hotel patrons was well-founded and that the appeal should fail.

Further court cases relating to airport parking can be found at section 20.5111 of DCP Online.

Never mind the quality

An inspector has ruled that a Surrey council’s blanket ban on extensions to houses on a recent development in the green belt is “plainly wrong” (DCS Number 400-019-143).

In the case before him the inspector considered that the proposed extensions would be innocuous and inconsequential. Accordingly, he concluded that the scheme would not be inappropriate development in the green belt and would not harm either the appearance and character of the existing building or the rural character of the estate and its setting in the open countryside. There would therefore be no conflict with government policy in the Framework or with the relevant local plan policy.

Notwithstanding the scheme’s compliance with both government and development plan policy, the council had refused permission because the proposal included a two storey extension precluded through a legal agreement concluded at the time of the permission for the estate. The refusal notice said that through an adverse effect on the character and amenities of the area the cumulative effect of two storey extensions would be contrary to the Framework ‘which seeks to protect the openness of the Green Belt’. The inspector took the view that this was plainly wrong in the context in which it was raised. He explained that in Lee Valley Regional Park Authority, R v Epping Forest District Council & Anor [2016], the Court of Appeal endorsed the conclusion of the High Court to the effect that where development is found to be ‘not inappropriate’, applying paragraphs 89 or 90 of the Framework, it should not be regarded as harmful either to the openness of the green belt or to the purposes of including land in the green belt.

The inspector ruled that, in summary, the legal agreement’s blanket ban on two storey extensions ran counter to the well-established principle in the planning system of each case being considered on its individual merits, and in that respect it was unfair and illogical. If the council considered that the estate warranted an extra layer of control over and above the weighing of the balance of public and private interests and the flexibility inherent in development plan policy and the Framework, he continued, he would expect it to prepare and consult on a Design Guidelines SPD, as indicated in general terms in the first sentence of paragraph 62 of the Framework. In this way, a system of qualitative development management rather than quantitative control would then merit significant weight in the decision-making process, either by the council or at appeal.

Section 12.632 of DCP Online provides further information on green belt house extensions.

Toys out of the pram

A rather bizarre situation arose after an Essex council refused to discharge pre-commencement conditions attached to the planning permission for 14 flats on the basis that development had already commenced (DCS Number 400-019-182).

The three conditions required: details of materials and hard landscaping; an investigation of any contamination on the site together with measures for remediation; and details of surface water drainage. “In this highly unusual case,” the inspector recorded “the Council refused all three applications to discharge the conditions on the basis that the actions of submitting the details required by the conditions to the Council, and their subsequent approval, should have been done before the development permitted by the original planning permission was commenced. Although the details were submitted, the development commenced before the Council gave its approval to them. The Council now argue that as the conditions are worded on a pre-commencement basis, they were not in a position to then discharge the conditions.”

The inspector noted that there was no dispute about the acceptability of the details submitted. He had no concerns about them either. He considered that the conditions did not ‘go to the heart’ of the permission but reasoned that it was not the place under a s78(1)(b) appeal to determine whether the original planning permission remained valid, and that s191/192 of the Act remained available to the appellant to establish the lawfulness of the development. Against this background the inspector allowed the appeals.

From a legal standpoint the council might possibly have had right on its side but we would suggest that a more pragmatic and grown-up approach might have been in the public interest in these circumstances.

Information concerning the discharge of planning conditions can be found at section 4.4119 of DCP Online.

A nut case

Paragraph 55 of the NPPF states that “Local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as:” …. (bullet point four)….”the exceptional quality or innovative nature of the design of the dwelling.” A recent appeal case concerning the retention of a beech wood hut at a house in Buckinghamshire (DCS Number 400-019-142) indicates that an exception to green belt policy on curtilage buildings might also be made for exceptional design.

The inspector observed that the outbuilding was located a considerable distance from the dwelling. On this basis, he ruled, it could not be considered as an extension in the way that a detached garage adjacent to a dwelling might be, and it was therefore inappropriate development under the NPPF. However, he found that the visual perception of the loss of openness was limited by the hut’s woodland setting whilst the spatial loss of openness was limited by reason of its small size.

The hut had been designed to resemble a brown beech nut in a natural eco build and had been made from UK sourced wood by hand, the inspector observed. It had overlapping curved timber shingle tiles sculpted around a roughly semi-spherical shaped structure. Internally, the space was roughly oval with windows to look at nature and create a space to write. He considered that it had a fairly unique and quirky appearance and character that blended in with its surroundings. He found that, locally, its whimsical natural charm added considerably to the character and appearance of the area. This was appreciated in filtered views by users of a public footpath and from neighbouring properties. Consequently, he considered that the hut was of considerable visual interest.

The inspector concluded overall that although the hut was inappropriate development there were very special circumstances to permit it.

Discussion of the nature of “very special circumstances” can be found at section 4.2514 of DCP Online.

What’s in a name?

Readers might be aware that Ed Sheeran’s plans to build a private chapel on his Suffolk estate were set back due to the possibility of there being great crested newts on the site. He’s not on his own – a proposal for an otherwise satisfactory family dwelling in Cheshire was turned down at appeal because it would result in the loss of GCN terrestrial habitat (DCS Number 400-019-111).

This is purely conjecture but we are just wondering whether it isn’t something to do with the name. You can see how calling a creature “great” and “crested” might lead it to think a lot of itself. Would things have been different if we had stuck to the species’ alternative name – the warty newt?

Section 4.1432 of DCP Online concerns wildlife and habitat loss.

All washed up

Now that laundrettes are an endangered species it seems a shame that planning legislation does little to protect the small number remaining.

A recent appeal case (DCS Number 400-018-997) shows just how easy it is to gain consent for residential conversion. This case concerns a prior approval application under Schedule 2, Part 3, Class M of the GPDO for conversion of a former laundrette in east Sussex to a flat. The inspector acknowledged that there was common thought amongst local residents that the laundrette had been a valued service, popular with young and old alike. The appellant explained, however, that it had closed in October 2017, and maintained that the costs of equipment modification and refurbishment works to the premises brought into doubt whether it would re-open. The inspector considered that this position had a significant bearing on the case as, should the impact of the change of use on the local laundrette service be seen as particularly undesirable, the GPDO stipulates that this is only a consideration where there is a reasonable prospect of the service being provided. In addition, whilst he had found that the loss of the laundrette would be felt locally, he also accepted that customers would be able to reach an alternative facility by bus. He concluded that the appeal should be allowed.

Clearly, the GPDO is likely to be relatively ineffective in protecting existing laundrettes since the lesson here is to remove any fittings and equipment before applying for prior approval for residential conversion.

Further information concerning Class M can be found at section 4.3423 of DCP Online.

For the sake of completeness

Before moving too far forward with an amendment to a planning proposal it’s worth remembering that, in planning law, the status of a completed building often differs from that of a partially completed building. The following case in south Wales sets out a bit of relevant case law.

In this case an inspector upheld an invalidity notice (DCS Number 400-018-769), ruling that an application for an additional floor on a partly constructed student accommodation block must relate to the whole building rather than the revised elements only.

The council had refused to validate the application on the basis that the proposal represented so substantial a change to the extant permission as to constitute a new scheme. The essential difference between the parties was whether the applicant had to apply for planning permission for the whole of the main block. The inspector referred to Sage v Secretary of State for the Environment, Transport and the Regions and others [2003] in which it was held that there is a distinction in law between a case where the building has been completed and is then altered and one where it has not been completed.

The inspector ruled that where a building has not been completed, an application which seeks to alter that building must take account of the entire building operation then proposed. He reasoned that such an approach is entirely logical; if planning permission were granted for part of a building which, if implemented, would result in a building different from that originally permitted and prevent the original building ever being completed, then the resultant building would clearly constitute a different development, not an altered version of the uncompleted original building, and should therefore be considered on its own merits. The appeal was dismissed and the notice of invalidity upheld.

Section 5.151 of DCP Online concerns the acknowledgement and registration of planning applications.

Off the wall

Perhaps an inspector wasn’t looking on the bright side when he denied advertisement consent for the retention of a painted sea lantern on the front of a tattoo parlour in Dorset, ruling that it harmed the grade II listed building (DCS Number 400-019-044).

The inspector observed that the artwork tricked the eye by making the first floor oriel window appear as part of a larger three-dimensional lantern. He held that the effect was to visually alter the shape of this architectural feature, detracting from its form. In addition, he noted that the painted chain cut across decorative brickwork below the parapet, making the architectural detailing on the building appear somewhat awkward, rather than being an integral part of the building design. He understood that the design was intended to represent the historic association of the town with the sea. However, whilst noting the quality of the artwork, and the fact that the works were all cosmetic, he decided that the design did not respect the features of historic and architectural interest that the host building possessed.

We might be on our own with this one, given the listed status of the building, but this was not a dead-of-night job by a wannabe street artist but a carefully executed embellishment of the appellant’s own premises. Maybe some art, some colour….some joy!…is just what is wanted to return some life to our ailing seaside resorts.

Further examples of appeal cases concerning advertisements affecting heritage assets can be found at section 30.0332 of DCP Online.

Walking on water

If you told the man in the street that a boat floating on water can entail the change of use of land he’d probably think you had a screw loose, but see what you make of the following ruling.

The use of a barge in Essex as a clubhouse, bar, and restaurant has been required to cease after an inspector found that a material change of use had occurred (DCS Number 400-018-999).

The appellant maintained that as the barge was a floating structure, it was not subject to planning control, and an additional wooden structure built on top did not require planning permission. The inspector recorded, however, that the judgment in Thames Heliport Ltd v Tower Hamlets London Borough Council [1997] is authority that the use of a vessel on water is capable of amounting to a material change of use of land.

The inspector explained that whether planning permission was required depended on whether or not the barge was a building as set out in section 55 of the Act, and a building is defined by section 336 as including any structure or erection and any part of a building, but not plant or machinery comprised within a building. R (oao Hall Hunter Partnership) v FSS & Waverley BC [2007] is authority that there are three primary factors relevant to the question of whether there was a building; size, permanence and degree of attachment to the ground.

The inspector noted that considerable works had been undertaken to the barge to transform it. She considered that it now had the size, bulk and mass of a building, being two storeys high and much larger than any of the small boats within the marina and boatyard.

The barge had not been moved for at least 18 years and no longer had an engine. Having remained in the same place for a very considerable period of time, the inspector reasoned that the barge had not been used as a moveable vessel. It had been in office use in association with the marina for much of that time, a use which required it to be static and was consistent with a use as though a building. These were all factors indicating its presence as a permanent feature at the marina, she determined. The presence of mooring platforms added to the permanency of the barge in the location.

Of greater significance, the inspector held, was the attachment of utilities. Cables for the supply of water, electricity and telephone ran from the barge underground through the sea wall to the main distribution point, and the barge was connected to a wastewater treatment plant on the quayside.

As a matter of fact and degree and having regard to the size, degree of permanence and physical attachment, the inspector found that the barge should be regarded as a building. She considered the works which had been carried out with regard to the structure were akin to building operations and, as such, amounted to development for the purposes of section 55(1) of the 1990 Act. The works therefore required planning permission by virtue of section 57. She concluded that the matters alleged in the enforcement notice constituted a breach of planning control.

Somehow it all seems so much more plausible when an inspector says it.

For more information on the mooring of craft and floating structures see section 4.3113 of DCP Online.