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Going underground

If you are looking for a way to maximize householder permitted development rights a recent appeal case in Kent (DCS Number 400-018-680) might be of interest. In this case an inspector granted a lawful development certificate for an underground games room and swimming pool, deciding that the works comprised permitted development.

The council’s reason for refusal was that the proposed works comprised an engineering operation and therefore did not benefit from permitted development rights. The inspector agreed that the works comprised an engineering operation, but reasoned that it did not follow that they did not benefit from permitted development rights. She pointed out that engineering operations are not specifically excluded from permitted development rights under the GPDO.

The inspector acknowledged that Class A of  the GPDO does not expressly refer to underground alterations to dwellinghouses. Nevertheless, she considered that the enlargement, improvement or other alterations of a dwellinghouse for the purposes of the GPDO is reasonably capable of being interpreted as including an underground structure.

The council argued that as the underground structure did not sit directly below the dwellinghouse it was not a basement and therefore not within Class A. The inspector found nothing in the GPDO or the Technical Guidance that supports this argument. She agreed with the appellant that location directly below a building is not a prerequisite to the common sense and dictionary definition of basement as ‘a set of rooms below the surface of the ground’. With regard to Class A the inspector concluded that the works amounted to the enlargement, improvement or other alteration to the dwellinghouse, noting that there was no dispute that any of the conditions or limitations of Class A were not met.

Turning to consideration of the proposal under Class E of the GPDO, the inspector judged that in comparison to the dwellinghouse the footprint of the proposal was not excessive. She reasoned that a swimming pool by its very nature will occupy a sizeable area and found that the games room was not an excessively large space for its proposed use. Given the size of the planning unit she concluded that the size and scale of the proposed structure would not be disproportionate nor excessive for its stated purpose.

The inspector decided that, whether a development falling within Class A or Class E, or both, the council’s refusal to grant a certificate of lawful use or development in respect of a reinforced concrete structure with all works below ground level was not well founded.

Section 4.3421 of DCP Online is the place to find further information on GPDO Part 1 permitted development.

 

Sounds of the city

An interesting ruling on the intention of Class O of the GPDO with regard to noise impacts has come up in a recent appeal decision (DCS Number 400-018-679).

This case involved a prior approval application for the change of use of the upper floors of a building in west London from office use to 30 flats under Schedule 2, Part 3, Class O of the GPDO. The inspector identified the main issue as being whether the proposal would provide adequate living conditions for its intended occupiers by way of the impacts of noise from commercial premises.

The inspector acknowledged that the site was located on one of the main thoroughfares into the town centre. He emphasised, however, that Class O of the GPDO concerns noise from commercial premises. He considered that this means that the noise must emanate from the commercial premises. Whilst he accepted that this includes noise from associated servicing and from customers, he ruled that it does not stretch to include more indirect sources of traffic noise such as from people and vehicles being attracted to a commercial centre, or using one of its main thoroughfares. He saw no compelling evidence that when the GPDO was amended to account for noise from commercial premises that it was intended to cover such a broad range of traffic use.

The inspector concluded that, subject to a noise mitigation condition, the proposal would provide adequate living conditions for its intended occupiers by way of the impacts of noise from commercial premises.

Information about office to dwelling conversions under Part 3 of the GPDO can be found at Section 4.3423 of DCP Online.

Comic sans

An inspector has sided with a council in Cambridgeshire in the reading of a handwritten dimension on a plan relating to planning permission for the change of use of agricultural land to garden land (DCS Number 400-018-548).

The appellants maintained that the height of the boundary fence was given as 7m whereas the council said it was marked as 1m. In upholding an enforcement notice requiring the reduction in height of the 1.5m high fence to 1m the inspector ruled that the figure was the number one written with a serif. She found that it did not look like the number seven which would usually have a far more pronounced top stroke. Moreover, she found it implausible that an application would have been submitted for a 7m high fence since it would be extraordinarily high, especially to enclose a small area of residential land on a street corner.

The inspector also noted that a retrospective planning application for the development with the existing fence had been refused planning permission in 2016. She reasoned that such application would have been unnecessary if the appellants had already sought and obtained planning permission for a fence up to 7m high as suggested. It also struck her as odd that such application had been made merely to “save the blushes” of the council’s planning department.

Tall tales?

Additional cases involving disputed plan dimensions can be found at section 6.32 of DCP Online.

 

Changed circumstances

In dealing with an enforcement appeal concerning the use of land in Hertfordshire as a wedding venue (DCS Number 200-007-514) an inspector has pointed out the potentially significant implications for green belt policy arising from draft changes to the NPPF.

Here is what he says:

“…on 05 March, the Government published a consultation draft of a revised NPPF. The general approach to development within the Green Belt is largely unaltered. However, under paragraph 145(e) of the consultation document the material change of use of land would not be inappropriate so long as the use of land would preserve the openness of the Green Belt and not conflict with the purposes of including land within it.

Due to the way in which the NPPF is structured ‘very special circumstances’ are required to justify a development that is inappropriate by definition i.e. one that does not fall within the limited number of exceptions. That is a high bar to overcome. The suggested policy change would have significant implications in respect of the material change of use of land, subject to the assessment on the openness of the Green Belt and the purposes of including land within it. If, such a change of use was not inappropriate there would be no need to demonstrate very special circumstances and, undoubtedly, the planning balance of material considerations would shift accordingly.”

You heard it here first.

Section 4.251 of DCP Online concerns green belt policy.

Not going to happen

A replacement dwelling in the green belt in Hertfordshire has been rejected at appeal, an inspector declining to take unexpended permitted development rights into account to justify a larger dwelling (DCS Number 400-018-395).

The existing dwelling was a modest single storey bungalow. The inspector found that the end result would be a building that was materially larger in volume, bulk and mass than that which presently existed on the site. The development would therefore be inappropriate development in the Green Belt as it was not within one of the exceptions in the closed list in paragraph 89 or 90 of the Framework, he determined.  

The appellant, however, claimed that the unexpended permitted development rights afforded to the existing dwelling were a legitimate fallback position and should be taken into account when assessing whether the proposal was materially larger than the building it sought to replace.

In turn, the inspector cited the words of the judge in Athlone House Ltd v SSCLG [2015] when considering paragraph 89 of the Framework “… it would not affect the baseline which was the basis of comparison set out in paragraph 89 [of the Framework]. Paragraph 89, as I have already observed, is clear; an unbuilt permitted development which a developer may be keen to implement could not, on the basis of the interpretation of the plain words of the policy, be included in such an assessment. That is not to say that such a material fallback would be irrelevant. It would probably be relevant at the stage of considering the question of very special circumstances, taking account of the weight to be attached to it bearing in mind the likelihood of its implementation and the extent of its impact on openness if it were developed”.

Accordingly, the inspector acknowledged that the unexpended permitted development rights were not irrelevant to the appeal before him. He noted, however, that the appellant had stated that the “condition of the property was poor and substantial investment would be required to not only secure structural integrity for future-proofing but to ensure that there was adequate thermal efficiency for sustainable modern-day living” and that the “long-term value of the property and its fit-for-purpose status is questionable”. On that basis the inspector found it highly unlikely that the appellant would go to the expense of carrying out extensions and alterations under permitted development rights to then demolish the building and erect the replacement sought. As such, he gave the unexpended permitted development rights limited weight.

There is comprehensive coverage of green belt policy at section 4.251 of DCP Online and rural reconstruction and replacement is discussed at section 9.63.

Golf balls

Taken from a recent appeal decision concerning the retention of a safety net at a golf club in north Wales (DCS Number 400-018-518):

“Playing golf often results in a ball being projected through the air..”

You don’t say.

Planning practice considerations associated with golf courses are discussed at section 18.2322 of DCP Online.

Faulty towers

A first floor extension to a building used as a money exchange abutting a railway embankment in the west Midlands has been refused permission by an inspector (DCS Number 400-018-516).

The inspector stated “The proposal would sit in very close proximity to the railway. In the absence of any appropriate structural information it is unclear how the development would impact on the stability of the adjoining railway infrastructure as a result of increased loads that would be created by the development. In the absence of such information, and in light of explicit concerns from Network Rail I cannot be satisfied that the development would not harm the stability and safe operation of the railway.”

Given that the name of the appellant was Faulty Tower Construction this is probably A GOOD THING.

External environmental factors affecting planning proposals are discussed at section 4.16 of DCP Online.

High-handed

A recent appeal case in north Wales addresses an interesting point about the validation of planning applications (DCS Number 400-018-465).

The appellants in this case had made a householder application for ‘alterations and extension to domestic garage to form annexe accommodation’ and they had paid the relevant fee. The planning authority, however, issued a notice of invalidity, with the requirement ‘Please complete and return an application form for planning permission, this type of proposal is not household but the creation of a dwelling, and please note the correct fee is £380.00’.

Quashing the invalidity notice, the inspector found it clear that the applicants sought permission for a conversion from a garage to an annexe, the use of which would be incidental to the enjoyment of the main dwellinghouse, and not for the creation of a dwelling. Citing Uttlesford DC v SSE & White [1992], he found nothing in law which prevented the council’s consideration of such a proposal as a householder application, since the court’s ruling was that it is a matter of fact and degree as to whether a ‘granny annexe’ would constitute a part of the main planning unit, or create a separate one. It therefore followed, he reasoned, that there was no prohibition on considering whether or not the proposal as applied for should be given planning permission as part of a householder application. As he pointed out, this in no way fettered the council’s judgement in determining whether to grant or refuse permission.

Here on the DCP Blog we agree with the inspector’s conclusion that it seems right that such a judgement should be exercised as part of the determination process, rather than forming part of the validation process. Indeed, we think it’s a bit high-handed to refuse to even consider the application for planning permission as sought.

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

How much exactly?

Q How much harm is less than substantial harm, exactly?

A More than 5.25 per cent.  

Paragraph 134 of the Framework states that ‘Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal…’. The question this raises, of course, is how much harm is less than substantial harm? An inspector dealing with an appeal against the refusal of planning permission for 290 dwellings on ridge and furrow earthworks in Leicestershire decided, in the case before him, that it was more than 5.25 per cent of the earthworks (DCS Number 200-007-416).

The inspector recorded that several parcels of the appeal site contained ridge and furrow earthworks. The appellant and county council agreed that they were a non-designated heritage asset. The majority of the earthworks fell within a ‘priority township’. The county council was of the view that the earthworks were of demonstrably equivalent significance to scheduled monuments and should therefore be considered subject to the policies for designated heritage assets, as set out by Paragraph 139 of the Framework. The appellant disagreed with this view, and the inspector also had some reservations, given that priority townships were not identified in English Heritage’s Scheduling Selection Guide for Agriculture, 2013 (reissued in 2015). However, given that he was allowing the appeal, he gave the county council the benefit of the doubt in order to take a precautionary approach. He therefore considered the proposal in line with policies for designated heritage assets.

The inspector agreed with the county council that the significance of the earthworks resulted from their largely coherent physical survival, group value, archaeological and historic research potential, diversity and amenity value. The proposal would result in the loss of some six hectares of earthworks within the priority township, he recorded. According to the county council the level of loss that would occur to the earthworks within the priority township as a result of the scheme was a 3.5 per cent loss if just the ‘well-preserved’ earthworks were taken into account or a 5.25 per cent loss, if the directly affected furlongs, which had a larger area of 7.8 hectares were considered.

The appellant referred to the Nuon High Court judgment (Bedford BC v SSCLG & Nuon UK Ltd [2013]), which states that substantial harm would be harm that would have such a serious impact on the significance of the asset that its significance was either vitiated altogether or very much reduced. In addition, the inspector noted that the Government’s Planning Practice Guidance states that ‘In general terms, substantial harm is a high test, so it may not arise in many cases’

Taking a precautionary approach and taking into account the highest figure suggested by the county council, the inspector was not of the view that a 5.25 per cent loss of earthworks would result in a substantial physical loss. It was clear that a very high percentage of the earthworks would remain, he reasoned. Further, in terms of group value, not only would the loss be on the edge of a settlement, importantly in his view, it would also be on the very northern edge of the earthworks within the priority township. Consequently, the large area of earthworks to the south of the appeal site would still very much retain their contiguous group value and the proposal would not sever or segregate any wider areas of earthworks.

Overall, given this and other considerations, he concluded that the proposal would result in less than substantial harm to the significance of the priority township.

As we all know, each case must be decided on its own merits, but this case might provide a handy rule of thumb.

The impact of large housing developments on heritage assets is discussed at section 7.1357 of DCP Online.

Haves and have-nots

Approval of reserved matters for 71 dwellings in Leicestershire has been denied after an inspector found that the distribution and appearance of affordable housing would not result in an inclusive and mixed community (DCS Number 200-007-446).

The affordable housing units would mainly consist of short terrace rows of three dwellings situated within small clusters in the development, the inspector noted. He judged that it would be obvious to most observers that the market housing consisted of large detached or semi-detached houses with individual parking areas. Conversely, the affordable housing would be left with plain and potentially soulless parking courts to their front, with the overall scale and height of the terraces noticeably shorter than the market dwellings and narrower when viewed from the front. The likely outcome of this, he held, was that occupiers of the affordable housing and visitors to the development would be able to distinguish clearly between, as the council put it, the haves and have-nots. The inspector considered that such an outcome would be the antithesis of the aims of planning policy, set out at a national level, to design and deliver inclusive and mixed communities.

The appellant pointed to the fact that the affordable housing had not been ‘banished to the least attractive part of the site’ as the national Planning Practice Guidance seeks to avoid. The inspector acknowledged this, concurring that layout-wise the affordable housing was towards the centre of the site. He also acknowledged the fact that a two bedroom dwelling is, by its very nature, likely to be smaller that a five bedroom dwelling. Nevertheless, he considered that there would be a clear and noticeable distinction between affordable and market housing directly as a result of the appearance and scale proposed, distinctions which would be manifest and potentially result in the long term in a non-inclusive community. He found that the affordable housing would not be well integrated with the market housing. The inspector concluded that the noticeable differences in the affordable housing compared to market housing would undermine a key aim of national planning policy to create mixed and inclusive communities.

Developers must know that this approach to affordable housing is unlikely to succeed. Unless they are….detached from reality.

More on the integration of affordable housing in developments can be found at section 7.337 of DCP Online.