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Code for Sustainable Homes condition deleted

In a case involving the replacement of a bungalow with a new dwelling in Berkshire (DCS Number 400-009-897) the parties all agreed that a condition requiring the house to meet Level 4 of the Code for Sustainable Homes should be deleted. The appellant argued that due to the withdrawal of the Code following a written ministerial statement in March 2015 there was no practical case for the condition to be applied on development yet to commence. The council accepted that if the appeal decision was made after 1 October 2015 the condition should be removed. The inspector decided he had no reason to disagree with this view and noted that the site visit for the appeal took place after this date.

The following DCP chapter is relevant: 4.412

Anticipated permitted development

Here is a cut-out-and-keep case which provides evidence not only that permitted development rights do not apply to a development which has yet to be completed, but also that they cannot apply in anticipation of completion of the development.

The case concerns a basement extension in central London (DCS Number 400-010-068). The appellants sought a certificate of lawfulness stating that a rooflight would constitute permitted development, subsequent to the completion of the development. The planning inspector explained, however, that his assessment must be based on whether or not the operations proposed to be carried out would be lawful if begun at the time of the application. In this respect he referred to the decision of the High Court in R. (on the application of Townsley) v. Secretary of State for Communities and Local Government [2009] in which Mr Justice Collins stated “ “It seems to me quite plain that the GPDO cannot be used to effect a change in what is permitted by a planning permission when that planning permission is being carried out. The purpose of the GPDO is to allow alterations and extensions or amendments to an existing building which has already been constructed.” As the basement extension had not been constructed the inspector concluded that the proposed operations could not have been lawfully begun at the time of the application.

The following DCP chapter is relevant: 4.343

Is it just us, or is this one something of a game-changer?

Here is the story: an Essex council granted permission in 2008 for greyhound kennels in countryside identified as a special landscape area (SLA). That permission was never implemented and a bungalow was built instead. Retrospective permission for the bungalow was denied at appeal in 2011. Permission was sought again last year and this time it was granted at appeal (DCS Number 400-010-072).

The inspector found that the bungalow had a limited impact on the character and appearance of the area, being perceived as part of a wider enclave of built development which included a complex of farm buildings. He accepted that the site was in a relatively remote rural location, with poor accessibility, and a limited range of local services nearby. However, he held that this should not automatically preclude further housing development, as long as it could be adequately assimilated without causing harm to the character and appearance of the locality. He reasoned that significant parts of the district were predominantly rural and that a realistic approach was therefore required. The position with regard to housing land supply was contested but the inspector held that, whatever the position, the dwelling made a small contribution to the supply of housing.

So, does a realistic approach to housing supply mean that we have now arrived at the point where we can delete all of the following, once held so dear?

protection of the countryside for its own sake

development to be directed away from designated areas such as SLAs

housing generally precluded outside settlement boundary

development to be sustainably located

The following DCP chapter is relevant: 9.23

RBKC basement extensions

The following case concerns the construction of a basement under a new house in the Royal Borough of Kensington and Chelsea. Readers might be aware of the Borough’s progress towards the earth’s core in the wake of ever increasing surface land and property values, and a Compass search will reveal innumerable cases where neighbours have raised concerns about the effect of basement construction on the structural integrity of their properties. In DCS Number 400-010-067, however, it was highway safety which was the principal matter of contention.

The inspector was concerned that during the construction of the basement there was potential for significant harm to road traffic flow, parking and safety due to the movement of construction vehicles. He reasoned that this was particularly so given the narrow, enclosed nature of the mews with significant demand for car parking and only narrow entrances at either end. He observed that the entrances were only negotiable by relatively small vehicles, requiring concrete to be transferred from large delivery lorries outside the mews itself. Whilst he found that the appellant had clearly given some consideration to all aspects of construction traffic management, the submitted draft construction traffic management plan nevertheless failed, in practice, to demonstrate that the construction of the basement would not result in unacceptable harm to road safety.

The following DCP chapter is relevant: 12.211

What do we mean by ‘contemporary’?

As planners we frequently use the term ‘contemporary’ but ought we to pause in order to consider what we mean, exactly?

The Concise OED defines ‘contemporary’ variously as ‘living, occurring or originating at the same time’ and as ‘modern in style or design’. In an appeal case concerning the redevelopment of a house in Surrey with a pair of semis (DCS Number 400-010-054) the inspector interpreted the meaning of ‘contemporary’ as used within a core strategy policy. The appellant took the view that the proposal for a building with a flat roof, large windows and a horizontal emphasis was innovative contemporary design and therefore gained support from the policy. The inspector, on the other hand, favoured a somewhat more literal interpretation: ‘In my experience, contemporary design can be defined as design that addresses contemporary matters such as current regulations, site constraints, fashions and functionality, and can be an interpretation of many styles from the more traditional to modernism.’

Perhaps this is why the term is not to be found in the NPPF.

The following DCP chapter is relevant: 4.132

Action needed on standard GPDO condition?

An inspector rejected a prior approval appeal relating to the extension of a barn conversion near Huddersfield (DCS Number 400-010-006), finding that planning permission was required. Planning permission had originally been granted for the adaptation of the barn to extend the existing dwelling and was subject to a condition which stated that ‘notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 the barn as converted shall not be extended nor shall any windows or doors be inserted other than those shown on the plans hereby approved unless otherwise agreed in writing by the local planning authority’. The appellant argued that the condition was not enforceable because it referred solely to the 1995 GPDO and that has now been superseded by the 2015 GPDO. The inspector explained, however, that Section 17 of the Interpretation Act 1978 meant that the existing condition relating to the 1995 GPDO should be construed as if it related to the 2015 GPDO.

Assuming the inspector is correct in this matter, it appears that references commonly found in standard planning conditions to future amendments to the GPDO are superfluous and as such, arguably, ought to be deleted.

The following DCP chapter is relevant: 4.4261

The social aspect

As spatial planners we are very aware of the locational aspect of sustainability but in a recent case in rural Warwickshire the social aspect of sustainability was emphasised.

In  allowing a new house on the edge of a village (DCS Number 400-009-976), an inspector emphasised the social benefits that it would bring. The inspector acknowledged that the village had a limited bus service and, given its location within the countryside, it was inevitable that residents would revert to using the car. However, she considered the social benefits associated with the development to outweigh any potential harm caused by the additional traffic movements associated with one house. It would also help meet the council’s requirement for additional housing.

The inspector noted that the village had an active social life and a visiting library, and shared some of its services with a larger village about three kilometres away. The larger village had a shop, a new village hall and a primary school. Whilst the proposal would be for one house, she considered that any amount of development within the village would help support the social activities in the village and therefore help maintain the vitality of the local community. Furthermore, being only three kilometres away, the development would bring similar benefits to the larger village and therefore help support the social wellbeing of the area. In this respect the inspector referred to a section of Paragraph 55 of the NPPF which promotes development in rural areas, provided it will ‘enhance or maintain the vitality of rural communities, for example where there are groups of smaller settlements, development in one village may support services in a village nearby.’

The following DCP chapter is relevant: 4.111

A dash of colour

Retrospective listed building consent has been refused for the painting of the exterior of a ground floor Glasgow bar in a burgundy colour (DCS Number 400-009-896). The appellant explained that since taking on the lease in 2012 the business had attracted core regulars but had struggled to attract passing trade, customers having indicated that a common problem was identifying the bar as a separate entity from the hotel above (…and that was before they’d had a drink?! Anyway…). Since the burgundy paint was applied business in the bar had increased by about 30 per cent. The reporter took particular exception to the clash between the burgundy colour and the cream colour of the hotel.

The overall result might be something of an assault on the eyes and, of course, the council and the reporter are charged with considering the impact on the listed building as a whole. It does seem a shame, though, to lose a spot of colour which might cheer up a dreich Glasgow day, could be regarded as a manifestation of the city’s well known brio, and has increased the viability of the business. Perhaps the city elders and their advisers will be able to use their ingenuity to find a creative and positive way forward.

Just saying.

The following DCP chapter is relevant: 27.2328

Picking up the community engagement theme

A 45m high wind turbine was allowed in the east Riding of Yorkshire (DCS Number 400-009-878) after an inspector decided that the proposal had community backing. Following the site visit in June 2015 the secretary of state issued a Written Ministerial Statement (WMS) in relation to wind turbines. This indicated that when determining planning applications for wind energy development local planning authorities should only grant planning permission if the site was in an area identified as suitable for wind energy development in a local or neighbourhood plan and it could be demonstrated that the planning impacts identified by affected local communities had been fully addressed and the proposal had their backing. Following consultation, the council received eight letters of objection relating to matters including landscape harm, cumulative impact, noise and shadow flicker. The inspector decided that any landscape harm would be very limited in extent, there was very little potential for other turbines to be seen in conjunction with the appeal proposal, conditions would ensure that noise levels were below recommended limits, and hedgerows and trees would mitigate against any limited potential for shadow flicker. On this basis the inspector decided that whilst the site was not within any area identified as suitable for wind turbine development the planning concerns expressed in the submissions from eight local addresses had been fully addressed. He reasoned that since the WMS stated that whether or not a proposal had the backing of the affected local community was a planning judgement for the local planning authority, by inference that judgement must also be for the inspector on appeal. He concluded that the concerns of a small proportion of the local community had been addressed and the scheme could be seen to have the backing of the local community as a whole in the context of the WMS.

Weighing the planning impacts of a development in the balance is one thing, however, while coming to the conclusion that it has community backing in the face of written objection is another. Would the local community ‘as a whole’ agree that the scheme had its backing or is this another example of community engagement fatigue? The inspector might have known the views of the silent majority but the latter conclusion would not seem unreasonable given that eight households objected to the wind turbine and eight households were overruled.

The following DCP chapter is relevant: 26.532

Inspectors are human too

An inspector took a pragmatic view in respect of an enforcement notice requiring the removal of two caravans on the Norfolk coast which had been sited there following the destruction of the appellant’s bungalow (DCS Number 400-009-887). The bungalow had been destroyed by a tidal surge in December 2013 and the case appears to have an intriguing backstory: “I do not propose to refer in detail to the criticisms made by each side of the other. For example, whether or not the appellant could have foreseen the events that left her homeless when she purchased the property, and whether or not the actions of the council contributed to the coastal erosion that led to the loss of that property, does not alter the position in which she finds herself.” says the inspector.

The council sought a compliance period of six months. The inspector understood the council’s need to protect its position by initiating enforcement action. He agreed that the residential use of the site was not compatible in the long-term with its location within a countryside policy area, as undeveloped coast, and within a coastal erosion constraint area. He saw scope for compromise, however. In the exceptional circumstances of the case the appellant’s request to extend the compliance period to twelve months in order to secure alternative arrangements was not unreasonable, he determined.

The following DCP chapter is relevant: 4.5361