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“What is this life if, full of care,

We have no time to stand and stare?”

The well-read readers of this Blog will recognise these lines from ‘Leisure’ by W H Davies. An inspector deciding an appeal relating to a wakeboarding facility in Cambridgeshire seems to have a different understanding of the term ‘leisure’, however, (DCS Number 200-004-995). There was much discussion at the hearing regarding the issue of need for the development, the inspector recorded. This arose from Paragraph 28 of the NPPF which supports: rural leisure developments that benefit businesses, communities and visitors and respect the countryside; and the provision of tourist and visitor facilities where identified needs are not met by existing facilities in rural service centres. Accordingly, the question then arose as to whether the development would constitute a ‘leisure development’ or ‘visitor facility’.

The inspector took the view that the word leisure embodies the idea of enjoyment and physical activity, for example, a leisure centre. The Oxford dictionary, he noted, defines a ‘visitor’ as someone who is visiting a place or person. He thought that it does not invoke the same sense of physical activity as leisure. He was therefore satisfied that for the purposes of Paragraph 28 of the NPPF, the proposal would constitute a leisure development. It followed that there was no requirement to demonstrate either a need or demand for the development.

Leisure doesn’t involve standing and staring, then.

The following DCP chapter is relevant: 18.3

Shakespeare 400

As we all know, 2016 marks the 400-year anniversary of the death of William Shakespeare. Ever topical, the DCP Blog is delighted to be able to report an appeal decision in which The Bard gets a mention (DCS Number 400-011-383). This case concerns the residential conversion and extension of a listed timber-framed barn in Stratford-upon-Avon. The property was originally a house, reputed to have been owned by Richard Shakespeare, and possibly the birthplace of William Shakespeare’s father and uncle. The appeal proposal involved adding a large, two-storey extension that would increase the volume of the barn by over 80 per cent. The inspector judged that an extension of such a size would be out of keeping with the existing size and scale of the listed barn and dominate its appearance to an unreasonable extent. He considered that the barn was a significant local heritage asset not only because of its considerable age and traditional appearance but also as a result of its possible historical associations with William Shakespeare’s family. The public benefits of the scheme, which included the repair of the deteriorating barn, were outweighed by the harm, he concluded.

Assuming there is a degree of substance to the reputed association with the Shakespeare family, this really isn’t the year to be contemplating a bit of an extension to the birthplace of Shakespeare’s dad.

The following DCP chapter is relevant: 27.3

Beds in sheds – removal of bathroom facilities

Planning authorities’ preference to see bathrooms and kitchens removed from unauthorised dwellings is easily understood; without these facilities it is unlikely that occupation will continue. However, an inspector dealing with an appeal against an enforcement notice directed at the unauthorised use of an outbuilding in the garden of a house in Oxford as a separate dwelling has deleted the requirement to remove its bathroom facilities as it would exceed what was necessary to remedy the breach of planning control (DCS Number 400-011-382).

The inspector pointed out that bathroom facilities are not uncommon features in ancillary or incidental outbuildings and there was nothing to doubt the appellant’s contention that the bathroom facilities were provided long before the more recent unauthorised change of use to use as a single dwellinghouse. The bathroom facilities would be lawful if the building remained in use for purposes ancillary or incidental to the main dwelling.

The inspector recorded that case law establishes that where a notice is issued alleging a material change of use, and the notice requires that certain works be removed, those works must have been integral to or part and parcel of the making of the material change of use.

He determined that the council’s concern about a future resumption of the breach did not provide a legitimate reason for requiring the removal of the bathroom facilities since Section 181 of the Act states that compliance with an enforcement notice shall not discharge the notice. The council could therefore take immediate enforcement action to prosecute the notice if the unauthorised use were to later resume.

It strikes us that this is one of those situations where effective enforcement relies on the monitoring of human behaviour rather than the recording of physical works (not unlike the situation in Outside play at nursery – whether condition enforceable); a difficult, if not impossible task. Given that ineffective enforcement is one of the best ways to undermine public confidence in the planning system there must be a better way. Sorry to say it, but maybe this needs amended legislation.    

The following DCP chapter is relevant: 10.2

First floor in barn conversion is within scope of Class Q

The following appeal decision provides some welcome clarity in the uncertain world of prior approval applications.

In determining an appeal against the refusal of a prior approval application for a barn conversion in Herefordshire (DCS Number 200-004-967) an inspector decided that the creation of a first floor did not put it beyond the scope of Class Q of the GPDO.

The inspector recorded that S.55(2)(a) of the 1990 Act establishes that “the maintenance, improvement or other alteration of any building of works which (i) affect only the interior of the building, or (ii) do not materially affect the external appearance of the building” does not constitute development. Accordingly, the internal works proposed, which would enable a first floor to be provided, would not fall within the definition of development by virtue of S.55(2)(a). He noted that they would not affect the existing structure so as to make it sound or otherwise enhance its structural integrity; it was already a sound structure and the internal elements proposed would not be additions to its structural integrity as such. He reasoned that for Class Q to seek to control such internal works, which are permitted elsewhere or do not constitute development in themselves, would be illogical. The internal works were permitted development, he decided.

The following DCP chapter is relevant: 4.3423

Prior approval – again

We recognise that we might be going on a bit about the shortcomings of the prior approval regime……but we’re not stopping. Here is another daft outcome.

A planning authority in Yorkshire refused prior approval for a householder extension on the basis that development had already commenced and therefore could not benefit from the prior approval process (DCS Number 400-011-347). At appeal, an inspector recognised that there is no provision in the GPDO for a retrospective application for prior approval. The appellant stated, however, that the existing extension would be demolished. On that basis the inspector decided that the application related to a proposal for a new development and allowed the appeal.

Firstly, in the real world, is the appellant really going to demolish the extension only to rebuild it? Secondly, is this what the planning system ought to be seeking to achieve, anyway?

The following DCP chapter is relevant: 4.3421

A note on prior approval for office to residential conversions

In determining an appeal against the refusal of prior approval for the change of use of the upper two floors over a shop unit in a Surrey town centre from office use to four flats an inspector examined the question of whether the need for external works to implement the change of use disqualified the proposal as permitted development under Class O of Part 3 (DCS Number 400-011-323).

The existing access to the upper floors was through the shop. The proposal included a new side door to the existing stairs to the upper floors. At first floor level an existing external fire door to a flat roof would be blocked off and at second floor level the external alterations would include two new rooflights for the bedrooms and one new bedroom window. The council’s decision notice stated that prior approval was refused because Part 3 Class O of the GPDO does not make provision for alterations or extensions to buildings and because the external ground and first floor alterations specified on the submitted drawings would require planning permission.

The inspector agreed that if the submitted plan includes any building operations then they cannot be approved under the prior approval process for Class O since Class O does not cover such operations. He reasoned, however, that this should not prevent consideration of the principle of the change of use under Class O. It would remain open to the successful applicant for prior approval to make a separate application for planning permission for any external alterations that were necessary to implement the change of use.

So, in order to gain approval for office to residential conversion where building operations are involved it is necessary to apply for both prior approval and planning permission. Has this really made the planning system simpler?

The following DCP chapter is relevant: 4.3423

We live in an ageing society

An inspector has dismissed an appeal seeking the retention of a chalet in the Devon countryside, finding that the appellant’s age and personal circumstances did not outweigh harm to the rural area (DCS Number 400-011-231).

The appellant argued that he was aged 65 and in poor health, and would have nowhere else to live. He moved to the site after a dramatic change in his personal circumstances, bought the site with his remaining capital, and now lived on a pension which was insufficient to allow him to rent a flat in the area and still have adequate money on which to live. This brought little sympathy from the inspector, who noted that no evidence had been provided as to the appellant’s means, and there was nothing from a doctor which said that his conditions prevented him from working. Many people work well past the appellant’s age, he remarked.

We’re wondering, here, how old the inspector was….

The following DCP chapter is relevant: 9.236

C3 or C2?

An appeal case concerning the occupation of a bungalow in Nottinghamshire by five adults with learning difficulties and mental health issues throws light on the distinction between C3 and C2 Use Classes (DCS Number 200-004-885).

The council had served an enforcement notice alleging the unauthorised change of use of the property from a dwellinghouse (C3) to a residential care home (C2). Meanwhile, the appellant sought a certificate of lawfulness, claiming that the existing use was for five residents living together as a single household and receiving care as permitted by C3(b). The inspector found that the enforcement notice had been issued without the proper authority and therefore declared it a nullity. Turning to consideration of the LDC appeal, however, he recorded that Class C3(b) is defined as the use as a dwellinghouse by not more than six residents living together as a single household where care is provided for residents. He reasoned that the fundamental question was whether the residents of the property formed a single household.

The inspector referred to North Devon District Council v First Secretary of State [2003] in which it was held that children were not capable of forming a single household in the absence of a live-in carer on the basis that children are not generally capable of running a household themselves. In the North Devon case the judge remarked that the same would apply to adults who suffer from mental or physical disability who need care in the community. However, that judgment was considered in detail in R (on the application of Crawley Borough Council) v FSS and Eve Helberg (Trading as the Evesleigh Group). In reaching his judgment on ‘Eve Helberg’ the judge remarked that he would be reluctant to read the comments of the judge in the North Devon case as laying down a principle that those who suffer from disability or are in need of care can never constitute a household. He concluded that the correct position is that a judgement needs to be made based upon the facts of each individual case having regard to the nature of the disability suffered and the degree of care required.

The inspector saw that the layout of the property was largely what one would expect of any family home, with a communal lounge, kitchen and garden area. Locks were provided on bedroom doors to provide privacy and security but he held that that, of itself, did not dictate that the residents did not form a single household, having regard to the prevailing sense of communal living. In proportion to the scale of the building as a whole he considered that the manager’s office was small and not unexpected in a home where care was provided. There was nothing inherent within the layout of the property that would suggest that the use would fall outside Use Class C3(b), the inspector determined. In addition, he recorded that the residents had formed friendship bonds. The communal living arrangements and the way in which household tasks were undertaken indicated to him that they were living as a single household, and care was provided on a shift basis such that none of the care workers were resident at the property. He noted that there had been incidents of noise and antisocial behaviour but reasoned that it is inherent within the terms of the Use Classes Order that those with mental disorders may fall within Class C3(b). Whilst acknowledging that the behaviour of residents might seem unusual or intimidating to neighbours, the incidents recorded by the police did not indicate that the residents were incapable of forming a household for the purposes of Class C3(b). A certificate of lawfulness was issued on the basis that the property was in use as a dwellinghouse as defined by Class C3(b) of the Town and Country Planning (Use Classes) Order 1987 (as amended) and no material change of use had taken place from the previous lawful use within Class C3(a) of that Order.

It seemed to the inspector that the purpose of the carers was largely to assist the residents in day-to-day tasks as opposed to undertaking those tasks themselves on behalf of the residents, described as ‘supported living’ by the appellant. This might be a useful test to apply to cases elsewhere when the relevant Use Class needs to be determined.

The following DCP chapter is relevant: 4.333

Rules is rules

There is sometimes uncertainty about whether it is required or permissible to provide an inspector with updated information. A recent court case, Robinson v Secretary of State for Communities and Local Government 22/1/16, provides a steer in respect of housing land supply figures, but is it in the right direction?

A Suffolk resident opposing an inspector’s decision to grant permission for 14 dwellings on an open gap separating two settlements which was used as a community garden claimed that the council should have provided the inspector with updated information on housing land supply. The inspector had decided that in the absence of a five-year supply of housing land, policies restricting the use of open gaps and gardens should be given limited weight, and granted permission. The resident argued that the council should have provided the inspector with updated information which demonstrated that it now had 5.4 years’ supply of housing land.

You can see the resident’s point of view here, the reasoning being that if the inspector had known that the council had an adequate supply of housing land the outcome of the appeal might have been different. Nevertheless, the judge ruled that there was no requirement under the Town and Country Planning (Appeals)(Written Representations Procedure)(England) Regulations 2009 for the local planning authority to update its evidence once new information had come to light, and the inspector’s decision stood. The judge explained that there is a need to safeguard against any and every correction and any new information should be reliable, objective and uncontentious; this prevents the late introduction of unreliable, unverifiable and contentious material.

If we are not to return to a backlog in the legal system worthy of the Court of Chancery there has to be a line drawn somewhere. However, important new evidence surely ought to be recognised as such in the interests of natural justice.

The following DCP chapter is relevant: 5.34

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