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Did the earth move for you?

Objectors to the retention of a 15m high wind turbine on a Staffordshire farm were concerned that vibrations from the turbine would disturb the breeding of brown hares (DCS Number 400-010-313). The inspector recorded, however, that a report produced by Keele University on the likely impact of ground-borne vibrations from turbines concluded that the level of vibrations from wind turbines is so small that only the most sophisticated instrumentation can reveal their presence and they are almost impossible to detect. He acknowledged that animals have heightened senses but found nothing to suggest that a single wind turbine of the scale erected would have a material impact on the breeding pattern of the brown hare. He therefore concluded that the turbine did not present an unacceptable risk to local biodiversity.

If anything, it might have helped leporid lovemaking along, mightn’t it?

The following DCP chapter is relevant: 26.5326

Continuing the easing of rural restraint theme

A planning obligation restricting the occupation of a bungalow on the edge of a village in west Yorkshire to a person living and working locally was discharged, an inspector deciding that it no longer served a useful purpose (DCS Number 400-010-286).

The restriction required the occupation of the dwelling to be limited to people who lived and worked in the local area for an established business and in housing need in the area and that if it was marketed for sale it must be at a price no greater than 75 per cent of its open market value. The bungalow had not been marketed, the appellant estimating that there had been a loss of between 600 and 700 jobs in the local area in the previous 20 years as a result of the closure of the four main textile mills. This was not disputed by the council and it had not provided any information about employers in the local area. The inspector therefore assumed that there were indeed few employment opportunities. It also seemed unlikely, she held, that someone defined by the council as in housing need would be able to purchase the detached stone cottage, even with the reduction. She reasoned that while such restrictions were often used in areas such as national parks to ensure that there was a supply of housing that was affordable to local people in housing need, the site was outside the national park and there was no local work in the area. She concluded that the chance of finding someone who fulfilled the criteria was very small.

This is a slightly unusual case in that one wonders whether the council would not have done better to have placed a full stop after the ‘living and working locally and in housing need’ part of the restriction. Thus, the value of the property would have been brought down to whatever such a person was able to pay. Even accounting for a 25 per cent discount on open market value a desirable stone-built detached bungalow would be likely to be beyond the grasp of a person in housing need, as the inspector concluded.

The following DCP chapter is relevant: 9.142

Some practice points

In granting permission for a crematorium in a Lakeland area of outstanding natural beauty (DCS Number 200-004-572) an inspector referred to the requirements of the Cremation Act 1902. This Act advises that sites should be at least 200 yards from any dwelling unless the owner, lessee or occupier has given their consent in writing, and at least 50 yards from a public highway. He reasoned that whilst this would not necessarily preclude urban sites there would seem to be support for the contention that crematoria should be situated within rural locations and in all likelihood within the open countryside.

The following DCP chapter is relevant: 26.135

In dismissing  an agricultural building for the storage of agricultural plant and machinery in Somerset (DCS Number 200-004-574) an inspector judged that the use of the site would be more akin to an agricultural contractor’s storage depot. She held that such a use does not fall within the definition of agriculture as set out in section 336 of the Town and Country Planning Act 1990. The council drew attention to an appeal decision (DCS Number 400-004-955), where the inspector was of the same opinion and to ‘Development Control Practice’ which provides at paragraph 21.1153 that “It is sometimes argued that agricultural contracting uses are ancillary to agricultural use, but this would only be the case if such a use was limited to the needs of the farming unit itself.” With no evidence to the contrary the inspector saw no reason to disagree with these approaches, which added further weight to her view.

The following DCP chapter is relevant: 21.1

An LDC was issued for a mobile home in Devon after the council mistook the period required to establish immunity from enforcement (DCS Number 400-010-297). The council considered that because the caravan had been unoccupied since June 2014, the appellants had failed to demonstrate a continuous period of occupation in excess of 10 years. The inspector pointed out, however, that the council’s approach appeared to have been to look at the 10 years immediately preceding the date of the application for the LDC, rather than the 10 years beginning with the date of breach required by S.171B(3) of the Act. She noted that the date on which the breach began could be established as 26 February 2003 so that by 27 February 2013 the use of the land for the siting of a caravan for residential use had become lawful due to the passing of 10 years. She explained that there is no specific requirement (as there was under the old Established Use Certificate regime) that a use must be subsisting at the date of an application for an LDC. Once a use has become lawful, it can be regarded as having continued for planning purposes even though it might have become inactive on the ground, provided only that it has not been abandoned, or superseded by a different use or new chapter in the planning history of the site.

The following DCP chapter is relevant: 4.535

Capable of agricultural use/designed for agricultural use

An enforcement notice requiring the demolition of a structure on a landholding in Somerset was upheld, (see DCS Number 200-004-565), an inspector deciding that although it might be capable of agricultural use it was not designed for agriculture.

The council believed that the blockwork structure was on its way to becoming a dwelling and that it was prudent to take enforcement action, in fairness to the developer. The council relied on the case of Chichester D.C. v FSS & Simon Green [2006] which it considered to indicate that an enforcement notice can be served against a building likely to become a dwelling. The inspector had some doubts as to this interpretation but noted that the judgement went on to indicate that, in deciding whether to grant permission, a decision maker would need to take account of what the essential character or design of the building was. It was recognised that it was insufficient to simply ask whether a building designed for one purpose might be capable of use for another purpose.

The inspector observed that the building was incomplete, being a blockwork structure constructed up to eaves level. There was no first floor in place but joist hangers had been installed in readiness. The walls would be clad externally in white lias stone and the roof in slates, with table stones to the gables. The drawing showed the proposed use of the ground floor as four animal pens, with a tractor/machinery store in the centre. The first floor would be used for hay and feed storage. The building had numerous openings in the masonry which had the character of domestic fenestration. The main entrance had a height of less than 2m, which would make it of limited use for its stated purpose of housing a tractor and a loader, or for other agricultural machinery.

The inspector found that the building was plainly capable of being completed and put to use as an agricultural building. However, he was struck by its underlying residential character, which led him to the view that it had not been designed for agricultural use. Whilst he accepted that the building was capable of being used for agriculture, he supported the council’s view that it had not been designed for agricultural use. It appeared to have been designed to be readily convertible to a dwelling, he concluded.

The following DCP chapter is relevant: 22.1334

Beds in sheds – positive deception or passive omission

An enforcement notice directed at the residential use of a blockwork building to the rear of a terrace house in north London was quashed, an inspector finding that it had acquired immunity after having been in use as a dwelling for four years (DCS Number 200-004-558). He noted that deliberate concealment of a breach of planning control enables enforcement action to be taken after the expiry of the prescribed periods (Welwyn Hatfield BC v SSCLG & Beesley), and the council argued that a number of alleged acts of deception had been undertaken by the appellant. These were the appellant’s failure to pay council tax for the building, the failure to apply for planning permission or building regulation approval, and the retention of the garage door in the rear elevation of the building. The inspector considered, however, that the appellant’s failure to pay council tax and the failure to apply for planning permission or building regulation approval are not uncommon among those who build or extend houses or convert buildings into houses without planning permission. He determined that they were passive acts of omission, rather than a Welwyn type positive deception that would disentitle reliance upon section 171B (1) of the Act. He also took the view that the retention of the garage door was an attempt at keeping a low profile, rather than a positive act of concealment.

The following DCP chapter is relevant: 4.5353

Back to the 70s

An inspector rejected the substitution of house types on a backland development in Nottinghamshire (DCS Number 400-010-267), finding that the design of the two houses, originally granted permission in 1971, would be more appropriate to the area.

The previous planning permission gave permission for the erection of five bungalows and two detached houses. The bungalows had been constructed but the two houses were never built. The inspector determined that as the planning permission had been implemented it remained extant and there was therefore a fallback situation. He noted that the proposed development would introduce an atypical contemporary design of dwellings with mono-pitched roofs and large expanses of glazing. The design would also result in large expanses of elevational materials to almost roof height. He accepted that the site was capable of sustaining a development of significant scale and of innovative design. He decided, however, that It was radically different from the well established traditional design of the properties in the surrounding locality to the extent that it would be clearly at odds with the prevailing character of the area and would result in an incongruous form of development.

Seventies style it is, then. Storage heaters and avocado bathroom suites?

The following DCP chapter is relevant:4.132

Some lavatory humour

The residential conversion of former public toilets on the Isle of Wight was allowed (DCS Number 400-010-266), an inspector not sharing the council’s concern that the proposal would appear squat within the streetscene.

Perhaps it’s just us.

A moment of wonder

An appeal against a refusal under the prior application procedure for the conversion of a barn in north Yorkshire to two dwellings was dismissed because the building had not been solely in agricultural use (DCS Number 400-010-257).

The inspector found that the suggestion that the holding had been used solely for agricultural purposes did not stand up to scrutiny. Both the council’s photographic evidence and his own site visit suggested that there had been, at the very least, a mixed agricultural and equestrian use. Accordingly, he could not conclude that the use had been solely agricultural. Therefore, the development was not permitted development pursuant to Class Q of the GPDO.

Without in any way calling into question the inspector’s decision, just wondering what difference it makes. Why might the residential conversion of an agricultural barn be acceptable under GPDO rights whereas the residential conversion of a stable is not?

The following DCP chapter is relevant: 4.3423

Further examples of the easing of rural restraint policy

Local need policy inconsistent with NPPF

A new dwelling was allowed in a Devon village, an inspector deciding that there was no need for local need to be proven (DCS Number 400-010-243). The inspector accepted that the village did not have a defined development boundary, nor was it listed as a settlement within the core strategy. Core strategy policy stated that development would only be permitted outside the listed settlements where it could be delivered sustainably and also in response to a demonstrable local need. He ruled, however, that reference to a demonstrable local need in the policy was a more restrictive approach than the presumption in favour of sustainable development advocated at paragraph 14 of the NPPF. The policy was therefore not wholly consistent with the NPPF, he determined.

The inspector acknowledged that the private car might be used more often than the bus to access the services of the local town but reasoned that this was often the case within settlements, even including the villages listed in the core strategy. The provision of a single dwelling would also have a positive social impact in providing a new dwelling to meet the needs of the appellants and free up their existing home for family occupation.

The definition of ‘isolated’

And in a case concerning the erection of three dwellings in rural Gloucestershire (DCS Number 400-010-244) the inspector examined the meaning of ‘isolated’.

The council argued that in view of its ability to access limited services and its reliance on other nearby settlements, the application site was isolated within the meaning of paragraph 55 of the NPPF. The inspector recorded that there is, however, no definition of the term ‘isolated’ in the NPPF and his attention had been drawn to the approach taken in another appeal decision where the everyday definition of isolated as meaning ‘lonely or remote’ was relied on by the inspector. He agreed with that approach and accordingly used the same definition in determining the appeal before him. The proposed development would be located on the edge of the village, he determined, opposite and adjacent to existing properties and could not in this respect be said to be lonely or remote.

The following DCP chapter is relevant: 9.13

This case further illustrates the need for plain English

Outline permission for up to 90 dwellings on the edge of a town in Staffordshire was rejected, the inspector finding that it would have a significant adverse effect on the setting of a conservation area and that this would materially harm the conservation area’s significance (DCS Number 200-004-537). He agreed with both main parties that the resulting effect would amount to less than substantial harm in the terms of the Framework. However, a finding of less than substantial harm, he explained, should not be equated with a less than substantial planning objection.

‘…in the terms of the Framework’ is perhaps the key phrase. Why is planning creating its own terminology when it already has plain English at its disposal?

The following DCP chapter is relevant: 4.37