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Actions have consequences

An inspector dealing with an appeal against a Dorset council’s refusal to remove an agricultural occupancy condition from a six bedroom house with a tennis court, swimming pool and extensive grounds (DCS Number 200-007-059) reminds us that planning really ought to involve some degree of looking ahead.

The inspector acknowledged that the council and others had concerns that the planning system had been ‘played’. “However,” he continued, “it seems to me that the problem stems from the approval of a large house in the first place, and then allowing substantial additions, with the inevitable consequence that the size and resultant increase in value puts the property beyond the means or requirements of those who might otherwise need such a dwelling and be able to occupy it.” He concluded that the condition no longer served a useful planning purpose, and should be removed.

Further examples where this situation has occurred are listed in DCP Online section 9.4332.

Nature abhors a vacuum

We have referred previously to the absence of a definition of ‘isolated’ in the NPPF – ‘Isolation’ – Now we’re getting somewhere – and the efforts of inspectors to fill the void. Here is a bit more from an inspector dealing with an appeal against the refusal of outline planning permission for two dwellings in rural Suffolk (DCS Number 400-017-227).

“The Council states that the development fails to accord with Paragraph 55 of the Framework insofar as it would represent an isolated new home in the countryside where new housing should be avoided unless special circumstances dictate otherwise. However, given that the Framework and National Planning Practice Guidance provide no definition of what constitutes an isolated dwelling, I have formed the view that this would depend upon a number of different factors, such as (but not exclusively); (a) its physical proximity to other dwellings and whether it fell within an otherwise built-up cluster or frontage; (b) its proximity to the built-up areas of nearby settlements; (c) its ‘sense’ of remoteness; and (d) its proximity to shops, services and public transport and whether sustainable modes of transport (walking and cycling) could be used to access them.”

More on housing in the open countryside can be found in DCP Online section 9.23

By accident or design

An inspector has upheld an enforcement notice requiring the demolition of a new building on a farm holding on green belt land in Derbyshire, after finding that it had been designed as a residential property (DCS Number 400-017-202).

The inspector noted that NPPF Paragraph 89 sets out that the construction of new buildings in the green belt should be regarded as inappropriate development, save for a limited number of exceptions, buildings for agriculture being one such exception. He recorded that the drawings submitted to the council for the appeal building showed four separate internal areas; for tractor parking, equipment storage, machinery storage and hay storage. He explained, however, that it is the case that for a new building to be considered as an agricultural building, so as to benefit as an exception to paragraph 89, it must be a building that has been designed for agricultural purposes. This, he noted, is supported by long established case law in Belmont Farm Ltd v MHLG and another [1962]  and Chichester D.C. v FSS & Simon Green [2006].

The inspector continued ‘In Belmont Farm Ltd the Court held that “designed” means more than simply “intended by the developer”, and that the correct approach was to “look at the structure at the time of its erection and ask; is this designed for the purposes of agriculture in the sense of its physical appearance and layout?” Also, in Chichester the Court indicated 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 insufficient to simply ask whether a building designed for one purpose might be capable of use for another purpose.’

The inspector considered that, although it was constructed as single storey, the building was of a design and scale commensurate with a 1.5 to 2 storey house. Further close similarities with a residential property were the eight identical and regularly spaced window openings with lintels and sills; the insulated roof structure, the rainwater goods, the use of high quality roof tiles, and brickwork finish to double skin walls. Larger entrances had a height of 2.1m and were similar in appearance to the opening for a domestic garage. Whilst he accepted that the building was being used for agricultural purposes, he found that it had not been designed for agricultural purposes, but appeared to have been designed so as to be readily changeable into a residential dwelling. He concluded that it was not an exception to paragraph 89 as an agricultural building and was therefore inappropriate development, harmful to the green belt.

Further examples can be found in DCP Online section 22.1334 Agricultural buildings looking like dwellings

The tripartite test

How do you tell the difference between a development scheme which has been artificially divided in order to avoid a requirement for affordable housing provision and one which hasn’t? You apply the tripartite test, that’s how.

An inspector dealing with an appeal against the refusal of planning permission for a roof extension to provide an extra two flats on an existing block of nine flats in south London (DCS Number 400-016-857) explained that the relevant case law is found in R (Westminster City Council) v First Secretary of State and Brandlord Limited [2003].

The inspector recorded that development plan policy was that for a scheme of 11 units two would be expected to be affordable. She acknowledged that pre-application enquiries were made in around 2013 in relation to a proposal that included 11 flats at the site, but judged that this was significantly prior to the completion of the nine-flats scheme in 2015, noting that it did not lead to a planning application. With regard to case law, she cited the 2003 Westminster case in relation to whether two development proposals could be aggregated or considered to form part of a larger whole. She explained that the resulting ‘tripartite test’ for considering whether a proposal constitutes phased development relates to ownership, whether the site is a single planning unit, and whether the development should be treated as a single development.

In the appeal before her, the site ownership relating to the proposed two-unit extension remained unchanged from the implemented nine-unit scheme and there was no dispute that the site formed a single planning unit. However, she held that these two factors did not by themselves demonstrate that the proposed extension to the completed development should be considered an additional phase of the original development.

The inspector accepted that simply waiting until completion prior to making a further application for development on a site did not in itself absolve any phasing-related requirements. On balance, however, having regard to the particular scale and nature of the proposal, the existing development and its surrounding context, the planning history of the site, and the relative timescales of the applications and completed development, she considered that the appeal proposal represented an extension to the existing development, rather than a phased addition to a single development or amendment to it. She was not persuaded that it had been demonstrated that the original proposal was deliberately designed to avoid the affordable housing threshold of 10 units, having regard to site capacity considerations, or as a first phase of a larger single development. Therefore, given that the scheme before her related to two units it would fall outside the threshold for affordable housing as set out in the development plan and so a S106 planning obligation would not be required. She concluded that the proposed development did not attract a requirement for the provision of affordable housing.

For comprehensive commentary on this topic see DCP Online chapter 7.3333 Threshold manipulation.

How many times?!

A procedural note taken from an appeal against an enforcement notice (400-017-156):

“The allegation refers to the material change of use of the land to use as domestic curtilage. The Council is aware that curtilage is not a use of land and has suggested that I use my power under s176 to correct the notice to refer to the use of land for purposes incidental to the use as a dwelling or use of land for domestic purposes.”

Come on guys, you know this one!

The following DCP section is relevant: 4.533

Sauce for the goose

Dismissing an appeal for the retention of seven studio flats in a building which had been granted planning permission for four one-bedroom flats (DCS Number 200-006-996), an inspector was not persuaded by the appellant’s argument that there are no internal space standard requirements in Part O of the GPDO.

The flats ranged between 23.5 square metres and 24.8 square metres in floor area, the inspector recorded. He found that they were overly small and cramped.

The inspector acknowledged that it is possible to convert offices into dwellinghouses under permitted development rights via Schedule 2, Part 3, Class O of the GPDO. The appellant highlighted that Class O does not specify a minimum internal space standard for dwellings, also noting that the council had approved many change of use applications for offices to dwellinghouses with flats of an equivalent size to the appeal scheme. The appellant further argued that Class O gives a strong steer in terms of the government’s approach to space standards.

The inspector was having none of this: “Planning permission is required for the development subject to this appeal, and it is reasonable to have regard to whether the size of the internal living space is sufficient.”

Whilst the Blog would in no way wish to condone the provision of the type of substandard accommodation described by the inspector, the appellant does appear to have a point. What is sauce for the goose is sauce for the gander. In the interests of evenhandedness and the avoidance of further cramped accommodation permitted under the GPDO, it must be time to consider an amendment to Part O to require minimum floorspace provision.

The following DCP section is relevant: 7.4338

Third time unlucky

Show this one to your stubborn client who refuses to heed your expert advice not to appeal.

An inspector dealing with the proposed residential conversion of a derelict building in north Yorkshire has awarded costs against the appellants, finding that they had acted unreasonably in appealing (DCS Number 400-016-970).

The planning application which was the subject of the appeal was the third submission at the site for a residential dwelling, the inspector noted. The first two applications had been refused planning permission, with one also being dismissed at appeal. The council submitted that the appellants had acted unreasonably insofar as their case failed to address or clearly justify a departure from both national and local planning policy. The inspector acknowledged that the proposal had evolved with regard to design. Nevertheless, the location of the proposal remained outside the development limits for the purposes of planning policy and, as such, the site was located within open countryside.

The scheme was plainly in conflict with both local and national plan policy, the inspector determined. She found that the unreasonable behaviour resulting in unnecessary or wasted expense, as described in the PPG, had been demonstrated and that a full award of costs was justified.

The following DCP section is relevant: 6.12

Dead or incapable

The nature of ‘conditions precedent’ has been exercising the finest minds in planning, as indicated in The order of precedence. When considering whether a permission has been lawfully implemented despite being in breach of a condition precedent a principal consideration is whether or not the details required go to the heart of the matter.

A recent appeal case (DCS Number 400-016-817) shows that conditions attached to outline permissions requiring the submission of the details of reserved matters are treated differently from ‘conditions precedent’. This case concerned an outline planning permission granted in 1999 for the replacement of two existing B1/B8 buildings in southwest London with two new B1 buildings. The inspector explained that “All reserved matters applications must be submitted within the three year period if the outline planning permission is to be kept alive. It does not matter if approvals are given after the three year period has expired, providing all the applications are made within the three year period.” In the case before him the relevant three year period ended on 9 March 2002. A reserved matters application solely for landscaping was submitted out of time and should have been returned by the council, but in any event it was refused. Albeit that development had commenced in June 2002, the outline planning permission was dead or incapable of lawful implementation after 9 March 2002 because it was no longer possible to submit details of the unapproved reserved matter for approval in accordance with the three year condition.

Citing Oakimber v Elmbridge BC [1992] and more particularly Rastrum and Benge v SSCLG and Rother DC [2009], the inspector recorded that the line of judicial authority is that until all of the reserved matters have been approved any works purporting to be commencement would be unlawful and in breach of planning control. In Rastrum, there had been a failure to obtain approval of all of the reserved matters as required by the outline planning permission, so that the permission had lapsed after three years and was not capable of being lawfully implemented for that reason.

The inspector found that the principle confirmed in Rastrum was directly comparable to the current appeal case, concluding that the development which had been commenced was done so in the context of a planning permission which was no longer capable of lawful implementation. A certificate of lawfulness was denied.

The following DCP section is relevant: 5.1322

Thinking inside the box….

….Box 5.1 of the Guidelines for Landscape and Visual Impact Assessment, Third Edition (GLVIA3) published by the Landscape Institute and the Institute of Environmental Management and Assessment, to be precise. Box 5.1 sets out eight criteria against which landscape value might be assessed. These are landscape quality (condition), conservation interest, scenic quality, recreation value, rarity, perceptual aspects, representativeness and associations.

Whether or not a landscape qualifies as a ‘valued landscape’ which, Paragraph 109 of the NPPF tells us, the planning system should protect and enhance, has been a subject of much debate at appeals recently. We have referred to this matter in a previous Blog – Value judgments.

Back in 2015 an inspector dealing with an appeal against the refusal of permission for a housing development in Warwickshire (DCS Number 200-003-421) had this to say: “I do not consider the only way to define the value of a landscape is to carry out the analysis contained in Box 5.1 of the GLVIA.”….”Had the NPPF intended this to be a technical process then it would have said so.” Here, then, the inspector appears to be recognising that there must be some element of subjectivity.

In a more recent appeal concerning housing development in County Durham (DCS Number 200-006-897) an inspector acknowledged that paragraph 109 gives no clear guidance on what constitutes a valued landscape. He recorded, however, that some clarity has arisen as a result of other appeals and subsequent legal judgements, with both parties in the case before him making reference to the Stroud District Council v Secretary of State for Communities and Local Government 2015 and Forest of Dean District Council v Secretary of State for Communities and Local Government and Gladman Developments Ltd 2016 court cases. He explained that these indicate that for a landscape to be valued it has to be more than just popular. It should have some demonstrable physical attribute which takes it out of the ordinary and beyond mere countryside. Further, he considered that the Stroud judgment appears to endorse GLVIA3 Box 5.1 as a relevant consideration in such matters.

Perhaps the best way forward with this is to aim for consistent decision-making through the application of a standardised form of assessment using the objective criteria set out in GLVIA3 Box 5.1, whilst recognising that the interpretation of the results must always involve a certain level of subjectivity.

The following DCP section is relevant: 4.25

The scales of justice

A good way to make sure that you get the green belt balancing exercise right is to imagine that you are using a set of cast iron kitchen scales with imperial weights. Bear with us, this really works. By way of illustration we have emboldened the words of an inspector in a recent appeal case (DCS Number 400-016-936): –

“The harm I have identified as a consequence of the inappropriateness of the development in the GB carries substantial weight against the proposals.”

  • So that means you need to put a big weight on the ‘against’ side of the scales.

“The loss of openness to the GB involved also attracts substantial weight against the scheme.”

  • Another big weight on the ‘against’ side.

“The acceptable design of the scheme and its minimal visual impact attract moderate weight in favour of the proposals.”

  • Now put one of the medium-sized weights on the ‘for’ side of the scales.

“The fall-back argument presented attracts very little weight in favour.”

  • A tiny weight on the ‘for’ side.

“The harm caused by reason of inappropriateness and loss of openness clearly outweighs any benefits of the proposals. Accordingly, the very special circumstances necessary to justify the development do not exist, and the appeal fails.”

  • By this time the scales will indicate very clearly what the decision is going to be because the ‘against’ side will have dropped. However….you have one last thing to do:

“All other matters raised in the representations have been taken into account but none are of such strength or significance as to outweigh the considerations that led me to my conclusions.”

  • The scales are still weighing against the proposal so the decision is to refuse.

Follow this procedure and you can’t go wrong.

The following DCP section is relevant: 4.251