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Q When is a flat not a flat?

A When it’s a house.

A number of London boroughs have housing policies which seek to resist the conversion of family housing to flats in order to provide choice and meet housing need. An inspector allowing an appeal against the refusal of permission for the conversion of a six-bedroom semi-detached house in southeast London to three flats appears to have used some rather shaky logic (DCS Number 400-012-949).

A local plan policy defines a family house as having three or more bedrooms, he recorded. The aim of the policy is clearly to retain family houses which are seen as a valuable resource, he reasoned. The proposed three bedroom flat on the ground floor would provide a family house in accordance with this definition and as such the proposal would retain a valuable single family house, he concluded.

Hmm. Bats can fly. Creatures that fly are birds. Therefore, bats are birds.

The following DCP chapter is relevant: 11.1321

Old habits die hard

In Out of sight, out of mind we reported an appeal case in which the inspector cited the Court of Appeal decision in John Turner v Secretary of State for Communities and Local Government and East Dorset Council [2016]. This established that the question of visual impact is implicitly part of the concept of openness of the green belt. We asked whether the effects of the court case have yet to become apparent. Not so much, appears to be the answer, as evidenced by the following recent decisions from two different inspectors.

“I note the appellant’s view that the car port would be largely unseen and therefore have very little impact on the openness of the Green Belt. However, the widely accepted view of openness is the absence of development and therefore I give this matter little weight when reaching my decision.” (DCS Number 400-012-825).

“Openness is generally defined by an absence of built form.     …..The 2-storey structure is.….only visible in a fleeting glimpse.…..     Moreover, whether or not the structure is visible from a public viewpoint, there is, as a matter of fact, a permanent loss of openness.” (DCS Number 400-012-847).

These things take time.

The following DCP chapter is relevant: 4.2516

Out of sight, out of mind

Not so long ago the view of inspectors was generally that the impact on openness in the green belt had little to do with whether or not development could be seen. Any physical structure would necessarily reduce openness, it was reasoned. A recent court case appears to have changed things somewhat radically, however.

In quashing an enforcement notice requiring the removal of a 10m by 10.3m building associated with a microlight airfield in the green belt in Lancashire (DCS Number 400-012-730) an inspector acknowledged that in purely physical terms the building affected the openness of the green belt. He recorded, however, that the Court of Appeal in John Turner v Secretary of State for Communities and Local Government and East Dorset Council [2016] recognised that the question of visual impact is implicitly part of the concept of openness of the green belt. He observed that the nearest buildings were about 350m distant, and the council made no claim that the appeal building was visible in the landscape from any public vantage points. He noted, in addition, that the High Court in Europa Oil and Gas Limited v Secretary of State for Communities and Local Government [2013] had recognised that the impact of a development on openness was not necessarily related to its size but also to its purpose. The appeal building was fit and appropriate in scale for its purpose, and had no more effect on openness than was necessary, he found. Despite its size, the inspector concluded that the building did not have any visual effect on the openness of the green belt.

John Turner has to be a very significant case. Have its effects not yet become apparent or did the DCP Blog miss the hoopla?

The following DCP chapter is relevant: 4.2516

Just not listening

Having awarded costs against a planning authority after finding that its “unreasonableness was compounded by its obduracy when presented with clear and compelling evidence on relevant case law by the appellant” an inspector must have been a little surprised to find that the authority had again refused planning permission for a similar development for the same reason.

In both cases (DCS Number 400-010-697) and (DCS Number 400-012-716) the authority had refused permission for the conversion of an outbuilding to a granny annex. The inspector ruled that the authority’s insistence on the sharing of facilities with the host dwelling failed to reflect the long established view that this is not the relevant test in such cases. He acknowledged that it is an error sometimes made by planning authorities and that it is important to protect the countryside from the inadvertent or unintended creation of new independent dwellings. He recorded, however, that the relevant case law: Wakelin v SSE and St Albans District Council [1978]; Whitehead v SOS and Mole Valley DC [1991]; and Uttlesford DC v SSE and White [1992], is all now of well over 20 years standing. He explained that the effect of these judgements is that the main issue is whether the appeal scheme would or could create a separate planning unit, and that a fact and degree judgement has to be made on the specific circumstances. After examining the circumstances in both cases the inspector concluded that the proposal would not be tantamount to a new dwelling in the countryside.

In respect of the second case the authority argued that a condition limiting the use to ancillary purposes would be inappropriate and impractical. The inspector pointed out, however, that this ignores government policy in the NPPF and the PPG which is to consider whether planning conditions can be imposed to enable a grant of permission for development that would otherwise be unacceptable. It also displayed a lack of knowledge of the advice in previous Circular 11/95 and its model condition specifically relating to granny annexes.

The following DCP chapter is relevant: 10.43

September song

Oh, it’s a long, long time

from May to December,

but the days grow short

when you reach September.

Ol’ Blue Eyes’ song about autumn years, poignant though it is, is sadly lacking in insight into the planning definition of a season. Luckily, an inspector dealing with an appeal against the refusal of a certificate of lawfulness for a proposed mobile home at a farm in Essex has been able to contribute (DCS Number 400-012-662).

The inspector recorded that Schedule 2, Part 5, Class A of the GPDO allows for the use as a caravan site of agricultural land for the accommodation during a particular season of a person or persons employed in farming operations on land in the same occupation. The dispute between the parties centred on whether the proposed use would be for a particular season.

The appellant explained that the caravan would be occupied for two seasons in each year for the breeding and rearing of chickens, turkeys, ducks and geese for the table. One period would be from October to late December and the other would be from January to late March or April, to meet increased customer demand at Christmas and Easter. The inspector considered, however, that the six to seven months proposed was more than ‘a particular season’ as a matter of fact and degree. Rather, it was two seasons and the length of the combined continuous period was not sufficiently temporary to be properly regarded as a seasonal use.

The council’s decision to refuse a certificate of lawfulness was upheld.

The following DCP chapter is relevant: 9.312

Changed priorities on affordable restriction

A recent appeal decision in Shropshire tells us that it is worth comparing affordable housing restrictions on existing property against current local planning policy, an inspector having lifted a planning obligation from a house in the light of changed priorities (DCS Number 400-012-611).

The inspector noted that the local plan had restricted open market housing to urban areas and settlements, but that it had allowed for affordable housing throughout the district. Accordingly, the dwelling had been granted planning permission as an affordable dwelling on the village site. The prevailing policy had changed, however, under the core strategy, and market housing was now permitted in the village. The site was surrounded by development, and it was clear to the inspector that a planning application today for a market dwelling would be in accordance with planning policy.

The inspector acknowledged that there was a continued need for affordable housing in Shropshire. However, the fact that planning policy had changed to allow market housing was an important material consideration and a clear indication of changed priorities towards housing mix in this particular location, he held, holding that it would be wrong to disregard the current development plan policy framework. He reasoned that were a proposal to come forward now for a dwelling on the site, it would be unnecessary and unreasonable to require a restrictive planning obligation of the sort currently applied to the dwelling. It would be inappropriate and inequitable to single out this particular dwelling for continuing restriction when others might be built nearby without such restriction, and indeed where an unrestricted dwelling could be built if the site had remained in the condition it had been before the granting of the original planning permission.

The obligation was not required for the continued maintenance of an affordable dwelling in the location, the inspector concluded.

The following DCP chapter is relevant: 4.628

If at first you don’t succeed, give up

An enforcement notice requiring the demolition of a summerhouse at a property in Lancashire was upheld at appeal (DCS Number 400-012-672), an inspector noting that nothing had changed since an appeal against the refusal of planning permission for its retention had been dismissed in January 2015.

The inspector usefully cited the law on consistency in decision making:

‘The law on consistency in planning decision making is derived from the judgement in North Wiltshire v Secretary of State for the Environment [1993] 65 P&CR 137. At paragraph 145 of his judgement Mann LJ stated that “…like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system”.’

The inspector observed that the case before him was not even one where it must be judged by comparison with a similar case. Rather, it had to be judged against a previous decision for the same case. Nothing of materiality had changed since the previous planning appeal was determined, he found. He concluded that planning permission must therefore be withheld for retention of the summerhouse and thus the appeal must fail.

The following DCP chapter is relevant: 6.421

Measuring floorspace for affordable housing contributions

In granting permission for ten flats in north London an inspector has overruled the council on the method of measurement of floorspace when assessing liability for affordable housing contributions (DCS Number 400-012-587).

The Written Ministerial Statement of 28 November 2014 states that “for sites of 10 units or less and which have a maximum combined gross floor space of 1,000 square metres, affordable housing and tariff style contributions should not be sought”, the inspector recorded. The council contended that the floorspace delivered by the proposal would be 1020 square metres and it should therefore make a contribution towards affordable housing. The inspector noted, however, that this was an external measurement. He pointed out that in Technical housing standards – the nationally described space standard the Gross Internal Area (GIA) of a building is used as a measurement of floorspace. The GIA does not include the thickness of internal walls within its measurement. It followed, he reasoned, that it is reasonable to accept the GIA as a measurement of the actual usable floorspace that a proposal would deliver. In the case before him the GIA would comprise 854 square metres.

The proposal would fall within the ambit of national policy as expressed in the WMS, the inspector concluded, and would not have to make provision for affordable housing contributions.

The following DCP chapter is relevant: 7.33

Hiding in plain sight

An inspector determining an appeal against the refusal of a certificate of lawfulness for the residential use of a single storey flat-roofed modular building in Cambridgeshire  (DCS Number 200-005-414) has a nice turn of phrase.

The inspector identified one of the main issues as being whether there had been positive deception of the local planning authority such that a principle of public policy, namely that a person should not benefit from their own wrong, was invoked (Welwyn Hatfield v SSCLG & Beesley [2011]). Noting that the building was big, white and conspicuous, and that it could be seen from the A10, he found it difficult to be sympathetic to the council’s claim that it had been positively deceived by the appellant’s action. “Short of putting a Belisha beacon on top of the modular building”, it was difficult to see how the appellant could have drawn more attention to its existence, he remarked.

The following DCP chapter is relevant: 10.1516

It’s not fair

Readers will be aware of the advice contained in the PPG which states that a negatively worded condition which prevents development proceeding until an obligation is entered into can be appropriate in exceptional circumstances and where it relates to one of the matters under consideration. In the appeal case reported in the Blog article Where there’s a will… the inspector decided that since the only obstacle which stood in the way of the proposed conversion of an office to a house under the GPDO proceeding was the need for an obligation to prevent future occupiers applying for or being entitled to a residents’ parking permit he was satisfied that such a condition was appropriate.

In (DCS Number 400-012-610), however, the inspector decided that the conversion of a shop in southwest London to two flats under the GPDO could not proceed in the absence of a legal agreement to prevent parking on the street from taking place. She observed that the area had a high demand for parking spaces and suffered from parking stress. The appellant stated that he would accept the imposition of a condition to ensure that it would be a car permit free development. The inspector noted, however, that the PPG states that only in exceptional circumstances can a negatively worded condition requiring a planning obligation or other agreement to be entered into before certain development can commence be imposed. She did not consider that the provision of only two flats in this location would be a complex and strategically important development.

These cases relate to development in neighbouring boroughs. The Blog is unconvinced that the decisions represent consistency in decision-making. If decision-making isn’t consistent it’s not fair.

The following DCP chapter is relevant: 10.312