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Major development

Rewind to the 150-year anniversary of the publication of Alice in Wonderland in 2015 and you have a suitable setting for appeal case (DCS Number 200-005-666) in which the inspector considered the definition of ‘major development’.

The appeal concerned the redevelopment of a cheese factory in a national park village with 26 houses. Development plan policy stated that major development should not take place within the national park other than in exceptional circumstances, and major development would only be permitted following rigorous consideration of the criteria in national policy. The inspector recorded, however, that national planning policy is now contained within the NPPF, and it does not provide a definition of ‘major development’.

The inspector noted that The Town and Country Planning (Development Management Procedure)(England) Order 2010 provides a definition of ‘major development’, and it was clear to him that the proposed 26 new dwellings, on a 2.56 hectare site, would fall within this definition. Parties, however, referred to Deborah Jane Aston and Westcott Meadow Action Group Limited v The Secretary of State for Communities and Local Government, Mole Valley District Council and Taylor Wimpey UK Limited [2013], the judgment in which concluded that the phrase ‘major development’ should not have a uniform meaning for policy, procedural rule or Government guidance, but rather be construed in the context of the document in which it appears.

The court ruling, then, signifies that the meaning of the phrase ‘major development’ changes according to where it appears, not unlike in Wonderland: “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.”

Given the prominence of the appeal site in the national park landscape the inspector determined that redeveloping it in the manner proposed would be an act of major development. That was how the inspector dealt with the conundrum but how would readers answer Alice?

The following DCP chapter is relevant: 5.1551

Weasel words

An appeal decision relating to the refusal of outline permission for “exemplar sustainable self-build development” in Cornwall shows that it takes more than vocabulary to gain permission for housing outside a development boundary (DCS Number 400-013-227).

The inspector had this to say in respect of the proposal’s credentials as ‘exemplar’ development:

“The appellant suggests that the proposal should be considered against the provisions in the fourth bullet point to paragraph 55 of the Framework. This allows, as one of the special circumstances, permission to be granted for an isolated dwelling in the countryside because of the exceptional quality or innovative nature of the design. However, to meet these criteria any dwelling would need to meet these requirements, and as an outline application it is very difficult to show that any dwelling would meet these exceptional requirements. To state that the proposal, as in the description, would be an “exemplar”, is not sufficient; it needs to be demonstrated. There is nothing in the application to indicate that the proposals would be truly outstanding or innovative, and consequently I can give this proposal no additional benefit under these provisions.”

In respect of the ‘sustainable’ claim the inspector concluded that:

“….the appeal site is not well located in an accessible location. Given the distances from the main facilities I give this harm significant weight.”

The DCP Blog makes no objection to the use of ‘exemplar’, or ‘sustainable’ when it is substantiated by evidence but could we all stop devaluing our vocabulary by scattering these words with such carefree abandon when it is not?

The following DCP chapter is relevant: 9.23

Belt and braces

“Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects”, says Paragraph 206 of the NPPF.

Council planners might be advised to use a reusable putty-like pressure-sensitive adhesive to attach this paragraph to the top of their monitors when considering the conditions that might be attached to a planning permission, as inspectors are quick to strike out conditions which do not meet the tests.

A case in point is (DCS Number 400-013-187). In this case an inspector took just two-and-a-bit paragraphs to delete a condition attached to permission for an extension to a house in southeast London. The condition sought to ensure that the existing dwelling was not subdivided into two separate dwellings. The inspector pointed out, however, that the subdivision of a single dwelling house into two would be an act of development which requires full planning permission, irrespective of whether or not the condition was retained. The condition was unnecessary and unreasonable and was not required to ensure that the dwelling remained occupied as a single dwelling house, she concluded.

You don’t need braces if you already have a belt.

The following DCP chapter is relevant: 4.412

Value judgments

There has been head-scratching here at the DCP Blog about how to recognise a ‘valued landscape’ (Paragraph 109 of the NPPF). Valued by whom?

In Leckhampton, Cheltenham (DCS Number 200-004-992) the secretary of state agreed with his inspector that the site, whilst not designated, had its own intrinsic charm which gave it value and that it was a locally valued landscape.

In County Durham, on the other hand, (DCS Number 200-005-628), an inspector found that “It is not appropriate to find that the appeal site, because it is valued by the local community, should be compared to, and be regarded in the same way, as the site at Leckhampton.” “It is valued by the local community but it is unremarkable in character. The site, fundamentally, cannot be regarded, with regard to paragraph 109 of the NPPF, to be a valued landscape”, he ruled.

Similarly, an inspector dealing with an appeal in Norfolk (DCS Number 200-005-550) stated “I recognise that the landscape has value for local people.” Nevertheless, he regarded it as open agricultural land of no special value and therefore did not accept it as being a valued landscape in the terms of paragraph 109 of the Framework. A valued landscape should comprise matters above the ordinary, he ruled. In addition, he gave greater weight to the evidence of the appellant’s chartered landscape architect than the informed opinions of the council’s generalist planner.

So, despite being valued by local people, indeed, despite having an action group on side in the Durham case, the sites in both (DCS Number  200-005-628) and (DCS Number 200-005-550) do not make the grade as valued landscapes in the terms of the NPPF.

A couple of court cases have addressed this issue. In Stroud DC v Secretary of State for Communities and Local Government 6/2/15 the court upheld an inspector’s ruling that a valued landscape had to have some demonstrable physical attribute rather than just popularity, and in Forest of Dean DC v Secretary of State for Communities and Local Government 4/10/16 the inspector had been entitled to conclude that there were no landscape features, characteristics or elements elevating the site above the countryside in general, the court decided. The court decisions therefore necessitate objective analysis of the landscape. What puzzles the Blog is that the wording of the NPPF appears to require subjective assessment.

Do readers have views on this?

The following DCP chapter is relevant: 4.25

Post Brexit

An appellant whose plans to build a house within 400m of the Thames Basin Heaths Special Protection Area have been thwarted due to the presence of protected birds in the SPA has claimed the country’s impending departure from the European Union in support of the proposal (DCS Number 400-013-119).

The inspector was not persuaded by the argument, however:

“The appellant has referred to the Government’s commitment to leave the European Union following the referendum held on 23 June 2016, and argues that this lessens the force of the EU Directive.” [Council Directive 2009/147/EC on the Conservation of Wild Birds]. “However, there is no indication at this time that the Government intends to abandon or reduce the level of protection offered to rare birds in the UK, and therefore I can afford this argument very little weight.”

The feathers of the nightjar, Dartford warbler and woodlark can remain unruffled.

The following DCP chapter is relevant: 4.169

Too late

A council in north Wales has been ordered to pay costs to appellants after it failed to persuade an inspector that the density and mix of a housing development could be controlled at approval of reserved matters stage (DCS Number 200-005-622).

Outline planning permission had been granted for the ‘development of 1.1 hectares of land for residential purposes’ with no reference being made to the number of dwellings. The appeal related to the council’s refusal to grant approval of details for the layout, scale, appearance, and landscaping of 14 proposed dwellings. The first refusal reason related to the density of development which the council argued was a fundamental element of the layout of the scheme, whilst the second reason for refusal related to the balance and mix of dwellings in terms of size, the council arguing that the size of the dwellings was appropriately dealt with when assessing scale.

The inspector considered that the starting point in assessing the issue was the Town and Country Planning (Development Management Procedure) (Wales) Order 2012, which provides a definition of the scope of each of the reserved matters. Layout is defined as ‘the way in which buildings, routes and open spaces within the development are provided, situated and orientated in relation to each other and to buildings and spaces outside the development’, and scale as ‘the height, width and length of each building proposed within the development in relation to its surroundings’.

The council argued that the outline application only indicated an indicative number of dwellings, and that it didn’t want to be overly prescriptive in this regard at the outline stage by specifying a number. The inspector ruled, however, bearing in mind case law cited by the appellants, that had the council wished to control density or housing mix further details should have been sought at the time of granting outline planning permission, or appropriately worded conditions should have been applied. He held that there was no scope for him to reconsider these matters which should have been dealt with at the outline stage and he allowed the appeal.

The following DCP chapter is relevant: 5.132

Deep breath…

A footnote from an inspector’s decision relating to an appeal in Dartmoor (DCS Number 400-013-053) raised a smile here on the DCP Blog –

“The development plan for this area includes (I take a metaphorical deep breath here): the Dartmoor National Park Authority Local Development Framework Core Strategy Development Plan Document 2006-2026 (June 2008), and the Dartmoor National Park Authority Development Management and Delivery Development Plan Document (July 2013).”

And relax.

The following DCP chapter is relevant: 4.2

Vertical Sky Component – an explanation

The Building Research Establishment’s daylight standards are often quoted but it is easy to forget how they actually work. Here is a handy guide, lifted from an inspector’s decision (DCS Number 400-012-993).

The 25° rule is a simple initial assessment. If a development proposal does not obstruct a 25° line in a vertical section from a point at the centre of the lowest window of property that might be affected, there is no need to go further and the effect is deemed to be acceptable. If that is not the case, a more detailed assessment is required which takes account of open space or obstructions either side of the vertical section. This is the Vertical Sky Component.

Vertical Sky Component is a measure of the amount of sky visible from a centre point of a window. A window that achieves 27% or more is considered to provide good levels of light, but if with the development in place the figure is both less than 27% and would be reduced by 20% or more, the loss would be noticeable.

That’s the maths done. The next step, of course, is to relate the information to national and development plan policy.

PS Don’t confuse daylight and sunlight. Many do but you know better.

The following DCP chapter is relevant: 4.1353

Q Is horticulture agriculture?

A It depends.

Readers working in the rural area will be aware that agriculture, as defined in s336 of the Town and Country Planning Act 1990, includes horticulture. Nevertheless, an inspector has issued a certificate of lawfulness for the occupation of an agricultural dwelling in Cornwall in breach of the occupancy condition, finding that the appellant’s occupation as a gardener did not comply with its terms (DCS Number 200-005-591).

The appellant was a self-employed gardener, maintaining domestic gardens. About 80 per cent of his work was lawn mowing, the rest was trimming hedges, pruning fruit trees and tending flower and vegetable beds. The council considered that his occupation as a gardener meant that he did comply with the condition. The definition of horticulture adopted by the Chartered Institute of Horticulture (CIH) included garden tending or maintenance, and the appellant’s occupation as a domestic garden maintenance worker clearly fell within the CIH definition of a Professional Horticulturist.

The inspector reasoned, however, that the CIH definitions relied upon by the council were very widely cast. For example, activities such as garden design, plant conservation and horticultural therapy were included. It would not be sensible in his view to consider all workers carrying out such activities to be agricultural workers. Noting that the definition of agriculture in the 1990 Act is concerned with the use of land for production, rather than, for example, recreation, sport or domestic gardening, the term ‘horticulture’ must be limited accordingly, he held. He also noted that the appellant’s business did not provide for the needs of agriculture, nor was there any need for it to be located in a rural area. Put simply, it was not the type of employment that the exception to planning restraint in the countryside was intended to cater for, he decided. As the appellant had lived in the farm dwelling in breach of the condition for over ten years it was immune from enforcement, the inspector concluded.

The following DCP chapter is relevant: 9.334

To coin a phrase

Inspectors must sometimes think that they spend half their lives correcting enforcement notices and, for whatever reason, it does seem that enforcement gets more than its fair share of criticism. This, to the point that an inspector determining an appeal against an enforcement notice alleging “a mixed use of agriculture and domestic” in Devon (DCS Number 400-012-983) found that the whole situation was such a mess it was ‘omniflawed’.

The council did not seem to have realised that when issuing an enforcement notice directed at the use of a site in mixed use, all the components of the mixture have to be included in the allegation, irrespective of whether some of them considered individually might have been authorised, immune or otherwise lawful, the inspector noted. He explained that otherwise, if the notice is upheld, unconditional planning permission is granted for all the uses not included in the allegation. In the case before him this would include industrial and commercial storage uses. He concluded that the allegation in the enforcement notice was so defective, and as a result the notice was so seriously faulty, that he could not see how he could properly uphold it.

It wasn’t just the council finding itself in the line of fire, however. “The appellant and his agent have made such a mess of the appeal that I would be entitled to dismiss it summarily, without considering it in any detail, since no relevant facts or arguments have been put forward to support the appeal.” “In summary, both sides in this case have created a situation which is best described (here I have to adapt modern English usage) as omniflawed.”

The following DCP chapter is relevant: 4.533