Latest Posts

Email to receive our fortnightly bulletin

This continues the theme of the duplication of controls raised in an earlier post

An inspector permitted the construction of a basement extension at a mid terrace house in the royal borough of Kensington and Chelsea subject to a condition that the works should be overseen throughout their duration by a chartered structural or civil engineer (DCS Number 400-009-842). Neighbours raised concern about structural damage to their properties and the inspector, in allowing the appeal, attached the condition “to protect the living conditions of neighbouring occupiers”.

It seems that there are three courses of action which the inspector could have taken here.

  1. He could have allowed the appeal, ruling that damage to other property is a civil matter which must be addressed under other legislation.
  2. He could have dismissed the appeal in the absence of a structural survey and programme of works convincing him that the development could be undertaken without damage to neighbouring property.
  3. He could have taken the course he did take.

How did the inspector decide, and on what basis? What matters influenced his decision? Was it the severity of the consequences should structural failure occur, was it vociferous opposition or concern from neighbours, was it the cost to neighbours of legal redress, not to mention heartbreak….

Again, it is possible to think of many situations where parallel issues are under consideration. Highway safety springs to mind. Guidance on when it is and is not acceptable to duplicate other legislation in the form of planning conditions would bring certainty to developers and local authorities alike. And certainty would save so many tears of frustration.

The following DCP chapter is relevant: 4.417

No chances to be taken with suffocating gas

It is often argued that conditions are unnecessary where the matter of concern is also addressed by other legislation but in the following case the inspector decided to take a belt and braces approach.

The inspector declined to delete a condition attached to the planning permission for a bus depot in Northumberland (DCS Number 400-009-827) which required a scheme to protect the buildings from the ingress of gas from former mine workings, finding that it was reasonable and necessary.

The council was particularly concerned about the risk from stythe gas, an asphyxiant which reduces the available oxygen content of air to a level incapable of sustaining human life.

The appellant argued that the condition was not necessary or relevant to planning, because ingress of gas from former mine workings was controlled under building regulations, and additionally by environmental health legislation. He also regarded this overlap of controls to make the condition unreasonable and to place an unnecessary burden on him.

The inspector noted, however, that Paragraph 121 of the NPPF states that planning decisions should ensure that the site is suitable for its new use taking account of ground conditions and land instability including from natural hazards or former activities such as mining. In this regard she had seen no evidence to demonstrate which controls outside planning legislation would provide a suitable alternative means of managing the matter.

The appellant had undertaken an investigation comprising ground investigation, geotechnical testing and chemical analysis supplemented by further monitoring of soil gases and groundwater. Results from the investigation showed that detected oxygen levels dipped to 14.7 per cent in one instance whereas typical atmospheric levels are around 21 per cent. The Mines Regulations 2014 contain a requirement to ensure that the amount of oxygen below ground is no less than 19 per cent volume, the inspector recorded. These seek to protect the workforce from harm, but relate to mine workers, rather than the occupiers of buildings.

The inspector concluded that in practical terms the recorded oxygen level of 14.7 per cent fell well below the level normally found in the atmosphere, and also below the level required for mine workers. Whilst appreciating that the occupants of the depot would not be working underground, she reasoned that the development nevertheless involved building enclosed spaces including sunken inspection pits and ground floor offices on top of land where mine gas might be present. She decided that since the occupiers of the depot were not adequately protected against the effects of stythe gas, and bearing in mind that there had been a number of near misses and one fatality in Northumberland relating to mine gas accumulations, the adverse impacts arising from a lack of suitable protection could be significant.

It remained necessary and reasonable to require the submission of a scheme to protect the buildings from the ingress of gas from former mine workings, particularly stythe gas, the inspector ruled.

The interesting point of debate raised by this decision concerns the necessity of conditions and the point at which a sensible safety first approach becomes the duplication of controls. Other similar types of condition come to mind, say drainage conditions, but readers will no doubt be able to think of other examples. Is there scope for the introduction of some clarity about what the rules are here?

The following DCP chapter is relevant: 4.417

Development for Northampton but not in Northampton

Outline permission for 41 houses was allowed in Daventry district despite its having a five-year housing land supply, an inspector reasoning that the development would serve the needs of Northampton (DCS Number 200-004-355).

The site was located immediately adjacent to the urban area of Northampton. The joint core strategy stated that Northampton’s needs could not be met within the borough boundary of Northampton and so adjoining areas in the districts of Daventry and South Northamptonshire had been allocated as sustainable urban extensions. These were included within the Northampton Related Development Area (NRDA) boundary. Although the site was not within the NRDA boundary it directly adjoined it. Daventry council stated that development outside the NRDA boundary was not required because all of Northampton’s needs would be met within the NRDA boundary. The inspector pointed out, however, that Northampton borough council was not able to demonstrate a five-year supply of deliverable housing sites within the NRDA, but had a shortfall of 223 dwellings. She concluded that the proposal would constitute development for the NRDA, if not in the NRDA.

And if Daventry wasn’t already feeling a bit cross the following from the inspector would surely see to it. Daventry argued that if the housing was to be provided to meet Daventry’s needs then the provision of affordable housing should be 40 per cent rather than 35 per cent which reflected Northampton borough council’s policy. The inspector decided, however, that as she had concluded that the proposal would constitute development for Northampton the provision of 35 per cent affordable housing on site would be sufficient.

The following DCP chapter is relevant: 7.13

You can’t help but feel a bit sorry for them

An additional floor to accommodate two flats on a building in mixed residential and retail use in north London (DCS Number 400-009-589) was rejected due to the lack of a contribution towards affordable housing. The application was made in September 2014 and refused in February 2015.

Contrary to the view of the council, the inspector saw nothing untoward in the appellant’s approach in devising an extension of wholly contrasting design to the host property. But….

Core strategy policy required that all sites capable of delivering 10 or more units should provide affordable homes on-site and schemes below this threshold would be required to provide a financial contribution towards affordable housing provision elsewhere in the borough. However, in the light of the Written Ministerial Statement (WMS) of November 2014 and the amendments made to the Planning Practice Guidance (PPG) in respect of affordable housing requirements on sites of 10 units or less, the council did not require the financial contribution to be paid. Nevertheless, in its appeal statement the council referred to the successful legal challenge made by West Berkshire and Reading councils to the WMS and revised provisions of the PPG in July 2015 (R on the application of West Berkshire District Council and Reading Borough Council) v Secretary of State for Communities and Local Government) [2015]. Accordingly, the council’s position was that if the inspector were minded to allow the appeal it would expect the decision to be accompanied by an undertaking to secure a financial contribution towards the provision of affordable housing elsewhere in the borough, in accordance with core strategy policy. The appellant, on the other hand, argued that the application had not been refused for this reason, and the original application was not determined in a timely manner, thus depriving the appellant of the short-lived stay on s106 contributions for small-scale developments.

In dismissing the appeal in November 2015 the inspector explained that he was required to make his determination in accordance with the development plan unless material considerations indicated otherwise, and the provisions of the core strategy policy were clear and unambiguous. Whilst he understood the appellant’s position, he pointed out that the option to appeal on the grounds of non-determination had not been exercised.  

That can’t have made the appellant feel any better.

The following DCP chapter is relevant: 7.3

Here is a case which raises a novel development management practice point

The owner of a semi-detached locally listed cottage in east London who built a three-storey rear extension in non-matching materials failed to convince an inspector that the development would comply with a condition requiring matching materials once he had cleaned up the bricks on the original house (DCS Number 400-009-655). Aside from the fact that the design of the extension did not comply with that granted planning permission, it had been constructed in new yellow stock bricks. The old bricks on the main building were yellow stock bricks but were now well weathered and significantly darker than when they were originally laid, probably well over 100 years ago. The inspector reasoned that if the appellant did manage to clean the old bricks successfully then the materials might match. However, no sample panel of cleaned bricks had been prepared and he simply did not know for sure if it would be an acceptable way forward. He could not, therefore, grant planning permission on this basis, he decided.

In this case the inspector was clear that there had been a breach of planning control, rejecting the argument that the work simply wasn’t finished yet.

The following DCP chapters are relevant: 4.3421 12.2

How to get an open market dwelling in the countryside

Planners working in rural areas will be aware that there is a desperate need for more farm dwellings (in the case where a new farmhouse is proposed) and no demand at all for them (in the case where an application is made to lift an agricultural occupancy condition from an existing farmhouse).

One effective strategy for gaining the removal of an agricultural occupancy condition from a farmhouse seems to be to build it in the wrong place thereby nullifying the condition after four years, as the following successful LDC cases illustrate:

County                          Distance off approved siting    Date                DCS Number

Worcestershire           8m                                                 28/7/15            400-008-370

East Yorkshire             24m                                              13/4/15             400-007-090

Carmarthenshire       6-7m                                              3/12/14             400-005-890

North Yorkshire         6-7m                                              7/9/12               100-078-702

Somerset                      Just overlapping                         24/7/12             100-078-270

Cash-strapped planning authorities who are worried that they ought to be doing a bit more by way of monitoring the implementation of planning permissions can now …. worry more.

The following DCP chapter is relevant: 9.413

Granny annexes – a matter of fact and degree?

A couple of recent appeals illustrate the difficulty faced by local planning authorities in determining whether or not residential annexes comprise ancillary accommodation.

In the first case (DCS Number 200-003-920) a granny annexe in a west Wales village was accepted as being ancillary to the main house. Here, the house and the annexe would be attached by means of a short glazed link. The council was concerned that the annexe, comprising a living room, kitchen, utility room, conservatory, bedroom with en suite facilities, and space in the roof, could be used as a separate residential unit. The inspector decided, however, that a number of factors which included the proximity of the annexe to the house, and shared garden and parking, pointed to the unit being used as ancillary accommodation. Therefore, it would not conflict with the council’s local needs policy.

On the other hand…

Ancillary accommodation proposed at a house in rural Warwickshire was turned down at appeal, in part due to its distance from the main house (DCS Number 400-008-419). The annexe would comprise a large living, dining and kitchen area together with two bedrooms and two bathrooms. The inspector was concerned that the annexe would be sited 20m from the house, and the appellants were vague as to who would occupy it. A condition limiting occupation of the annexe to ancillary accommodation would be inappropriate, he decided, as it would be next to impossible to detect a breach.

So, both of these proposed annexes would be relatively large but one was allowed, the other dismissed. The greatest difference between them would seem to be the distance from the host dwelling. So all we have to decide is how close is close enough and how far is too far. Simples.

The following DCP chapter is relevant: 10.2

The potential of rooftop schemes for solar gain and renewable energy generation

A scheme for a solar farm on high quality agricultural land in Devon (DCS Number 200-003-894) failed the sequential test, the inspector not being satisfied that brownfield opportunities including rooftop schemes had been properly looked at. She recognised that the NPPF and PPG on solar farms did not expressly refer to the need to undertake a sequential test but reasoned that it was self-evident that in requiring an assessment as to whether land of lower quality was available a review of the quality of the land which was available needed to be undertaken. Given the ministerial statement of March 2015 which set out a need for developers to provide a compelling justification for schemes involving high quality land she decided that she had no alternative but to dismiss the appeal.

The second case concerned the orientation of roof-mounted solar panels on 20 houses in Nottinghamshire (DCS Number 400-008-261). The Carbon Trust advises that ideally solar panels should be orientated so that they face within 45˚ of south. The council was concerned that whilst five of the houses would adhere to this advice the remaining 15 would be orientated east-west. The inspector pointed out that if all the houses were orientated within 45˚ of south it would not be possible to get so many houses on the site. Anyway, the panels on west-facing roof slopes would generate electricity in the late afternoon and early evening, when most needed. He decided that the layout and orientation of the houses would provide very good levels of renewable energy generation whilst optimising the development potential of the site.

The first case does seem to set the bar very high. Pity the developer who must ask anyone with a roof in the area if there is any chance of putting solar panels on it.

DCP section 26.536 refers.

Here’s a bit of fun

An inspector has allowed the placing of life-sized sculptures of a cow, a bull and a calf on a roundabout on the A39 (DCS Number 400-008-305). The sculptures were designed to draw attention to the land-based studies courses available at the local college but the highway authority was concerned that they would prove a distraction to motorists. The inspector decided, however, that the bovine family would not be out of context in its rural setting and would not prejudice road safety.

Those of a certain age will be delighted to hear that Ermintrude will be returning to The Magic Roundabout very soon.

And here is planning doing its bit to save the planet:

A one metre high fence was allowed around part of a field used as an apiary in the southeast London green belt (DCS Number 400-008-325). The land had previously been used as an orchard but this had been grubbed up and the land divided into 700 plots which were offered for sale. The council had removed permitted development rights on the land through an Article 4 Direction and was worried that the fence might prove a precedent for the erection of other structures on the land. The inspector reasoned that bee-keeping was an agricultural activity and that the siting of hives and a shed would not amount to operational development anyway. He concluded that the fence would not have any significant impact on the openness of the green belt or harm the character and appearance of the area.

Kent, the bee-friendly Garden of England.

Three cut-out-and-keep cases this time. Put these in a safe place – they will definitely come in useful one day.

  1.       Minor material amendments

In a mixed use development in southeast London an inspector sanctioned a raft of changes to a building which had already been constructed as minor material amendments (DCS Number 400-008-304). A number of changes to the building had been carried out during construction ostensibly due to the gradient in the road. These included the re-siting of the access, alteration of the parking layout, architectural alterations, and an increase in floorspace of 66 square metres. The inspector disagreed with the council’s claim that the cumulative effect of the changes was substantial. An interesting point to note is that the inspector compared the scale of the changes against the overall scale of the scheme, noting that the increase in floorspace would be only four per cent of the total.

DCP section 5.1352 refers.

  1.       Residential annexe

An inspector issued a lawful development certificate for the conversion of garaging at a property near York to a residential annexe, notwithstanding that it would have two bedrooms each with en suite facilities, a large living, dining and kitchen area and a cloakroom (DCS Number 400-008-282). He acknowledged that the unit would be substantial and would contain all the facilities necessary for day-to-day living. Nevertheless, he found a number of points in its favour, including that only about half the existing building would be converted to residential use. Again, scale counts.

DCP section 10.2 refers.

  1.       Barn conversion

A barn conversion in Shropshire was ruled not to be permitted development in the absence of a bat survey (DCS Number 400-008-314). The appellant pointed to a decision in December 2014 (DCS Number 400-006-116) in which the inspector had decided that the council was not authorised to ask for ecological information under the GPDO. The inspector in the more recent decision acknowledged the need for consistency …. but nevertheless held that without survey information she could not be satisfied that the requirements of the Conservation of Habitats and Species Regulations 2010 would be met. Pick whichever suits.

DCP sections 10.1 and 4.3423 refer.