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A lost distinction

We found this from an inspector in a recent appeal decision (DCS Number 400-016-993).

“The terms ‘incidental’ and ‘ancillary’ have, in general, become interchangeable in their meaning. Both terms refer to a use or activity that would not be expected to be found as an integral part of a use.”

Is the inspector right on this? Are ‘incidental’ and ‘ancillary’ interchangeable? Or does ‘ancillary’ have a connotation of serving a principal use in some way whereas ‘incidental’ is just, well, incidental.

What do readers think? And does it matter anyway?

The following DCP section is relevant: 4.323

Always more to do

A recent appeal case concerning the change of use of amenity land to residential garden land at two new houses in Berkshire tells us that an inspector’s work is never done (DCS Number 200-006-882).

The enforcement notices were appealed on the basis that there had been no material change of use due to the action of s55(2)(d), the inspector reported. He recorded that Section 55(2) says “the following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land” and (d) is “the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such”. The appellants argued that the land was within the curtilage of their dwellings and so its use as garden was not development, so could not be a material change of use as alleged.

In determining the appeal the inspector made reference to Richard O’Flynn v SSCLG and Warwick District Council [2016]. Noteworthy is the court’s criticism of the inspector involved for not considering the effect of s55(2)(d) in the case of an application for a lawful development certificate. Having found that the land in question had not been used for residential purposes for the necessary period, the inspector should have gone on to consider whether it was nevertheless within the curtilage of the property, when the use would not constitute development, the court found.

In (DCS Number 200-006-882) the inspector ruled that the land in question for both properties was within the curtilage of those properties and so by virtue of s55(2)(d) its use for purposes incidental to the enjoyment of the dwellinghouse did not constitute development. The appeals therefore succeeded, since there had been no material change of use, and he quashed both notices.

The following DCP section is relevant: 12.9

Substance over style

Given the tragic fire that occurred at a block of flats in north Kensington in June, and the concerns about the type of cladding used on the exterior of the building, we might find that householders’ taste for exterior cladding will diminish. Here at the Blog we certainly hope so, if an appeal case in northeast London (DCS Number 400-016-628) is a representative example of what is currently being put forward for planning permission. Quite apart from the safety considerations, which must now demand the closest scrutiny, the inspector describes a proposal which sounds architecturally ghastly.

The appeal related to a traditional two-storey brick terraced house which had been converted into two flats. The building had two-storey projecting polygonal bay windows with contrasting brickwork, decorative architectural moulding around the bay windows and the original porch detail above the front door. The proposal involved expanded polystyrene external wall insulation being installed on both the front and rear elevations. This insulation would then be covered in a silicon render of an off-white colour. Together, they would have a depth of approximately 90mm. The inspector considered that the insulation and render would result in an incongruous and unsympathetic addition to the property, and when viewed in the context of its traditional terraced surroundings, the protruding wall insulation and render would detract from the streetscene. The appellant argued that the detailing around the bay windows and front door could be replicated so that the existing architectural features would be retained in a similar form. The inspector reasoned that even if the architectural features could be replicated, given the increased depth of the property with the external wall insulation and silicon render, the replica detailing would also project forward of the matching architectural detailing on the adjoining properties. This would emphasise the incompatible nature of the proposed development with its neighbours. Unsurprisingly, the inspector concluded that the proposal would not respect the character and appearance of the appeal property and the streetscene.

The following DCP section is relevant: 12.416

It might come in

This one will appeal to hoarders.

In dealing with an application for a certificate of lawfulness to confirm that a permitted development extension to a cottage in Yorkshire had been lawfully implemented and could therefore be completed (DCS Number 400-016-702), an inspector explained that in such cases the relevant GPDO is that in force at the time the development was begun. In the case before her the inspector noted that a trench and foundation were dug and installed, respectively, when the Town and Country Planning (General Permitted Development) Order 1995 was in force.

The inspector recorded that:

“S56(2) of the 1990 Act provides that ‘development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out’. Where it is claimed that development is permitted by the GPDO, the relevant GPDO will be that in force when the development is begun; Williams Le Roi v SSE & Salisbury DC [1993]”.

The inspector explained that if the GPDO 1995 had permitted the extension, the permission would have been ‘crystallised’ at such a time that ‘material operations comprised in the’ extension were carried out. The foundation had been covered over. Consequently, the inspector found that it was not substantially useable for the extension. Having found that the development was not within the curtilage of the dwellinghouse in any case, she determined that the appeal had to fail.

So whatever you do, don’t clear out all that old permitted development legislation. You never know when it might come in.

The following DCP section is relevant: 4.343

The order of precedence

In a recent appeal decision an inspector gives consideration to what makes a condition a true condition precedent (DCS Number 400-016-471).

The case concerns the refusal of a lawful development certificate for the creation of a first floor flat, granted planning permission in 2006. The appellant claimed that the permission had been implemented due to the digging of a trench. The inspector, however, was not satisfied either that the works were done in accordance with the permission or that they were more than de minimis. She explained that even if the digging of the hole had constituted a material operation, it was possible that the permission had expired if there was a failure to comply with a condition precedent before the deadline for commencement of the permission.

Planning permission had been granted on appeal and was subject to three conditions, the inspector recorded. The second condition was for no development to take place until samples of external materials had been submitted to and approved by the local planning authority. The third condition required the submission and approval of details of a parking space before development commenced. Interestingly, the inspector noted a clear distinction in how the two conditions had been worded and she believed it to be purposefully so. She found it reasonable to conclude that the inspector had been deliberate in his choice of words to ensure that no development should take place before details of materials were approved. Those details were a matter of substance going to the heart of the matter, and the condition was a true condition precedent, she determined. On the other hand, she reasoned that parking was peripheral to the development itself and would not be a condition precedent, and this was reflected in how the condition was framed in contrast with the materials condition. She determined that the non-compliance with the materials condition meant that the planning permission could not properly be described as implemented and it had therefore lapsed regardless of any operation carried out at the site.

So….the inspector has concluded that a condition which begins “Before development commences….” is not a true condition precedent.

Do readers have any thoughts on this?

The following DCP section is relevant: 6.342

Ceteris paribus

We all know that each planning application and appeal falls to be considered on its own merits. Nonetheless, this accepted wisdom should not be allowed to provide an excuse to close off proper consideration of comparable developments, as can sometimes happen at appeal. Because, in the interest of fairness there must be consistency in decision-making. Although two schemes are rarely identical there can be similarities which merit equal treatment.

In dealing with an appeal concerning an outbuilding in southwest London (DCS Number 400-016-800) an inspector appears to have had the right approach:

“In reading the written material before me, I noted the various appeal decisions submitted at appendices 5-10 of the appellant’s statement. They clearly help to illustrate the points the appellant is making in the statement and have not been directly challenged by the Council. I have taken them into account insofar as they are relevant to this appeal, bearing in mind that the facts in each of them are not identical to the facts in this case and that each appeal has to be determined on its own merits and facts.”

What the inspector is recognizing here is that a certain set of circumstances should lead consistently to the same outcome at appeal. Other things being equal.

The following DCP section is relevant: 6.36

It’s all agreed

An appeal case relating to the refusal of outline permission for up to 80 dwellings in Hampshire (DCS Number 200-006-896) sums up current thinking about policies which place a blanket restriction on development in the open countryside.

The inspector recorded that the site was outside the settlement boundary and as such the proposal would conflict with local plan policy which resisted development in the countryside.

He explained that in the light of the Supreme Court’s decision in Suffolk Coastal DC v Hopkins Homes Ltd and SSCLG, Richborough Estates Partnership LLP and SSCLG v Cheshire East BC [2017], it is now common ground that such policies do not amount to policies for the supply of housing in the terms of Paragraph 49 of the National Planning Policy Framework. Readers will be familiar with Paragraph 49 which states: “Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.”

So does this mean that the blanket restriction remains secure? No, it doesn’t, because Paragraph 14 of the Framework then kicks in. The council accepted that it could not demonstrate a five-year land supply. Indeed, the inspector noted, the scale of the housing shortfall was acute. As such, it was common ground between the main parties that the ‘tilted balance’ set out in the second part of the Framework’s Paragraph 14 was engaged. This states that planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole. Bearing this in mind, the council considered that planning permission could now reasonably be granted for the appeal scheme.

The inspector concluded that although the proposal would conflict with relevant local plan policies, it would not result in adverse effects that would be sufficient to significantly and demonstrably outweigh the scheme’s clear benefits, notably the provision of much needed housing. He determined that the particular circumstances were sufficient to override the policy conflict.

The following DCP section is relevant: 7.133

Mud sticks

An inspector dealing with an appeal against the refusal of outline permission for three dwellings in Surrey (DCS Number 200-006-849) has reminded us that despite there being a tendency for mud to stick, it shouldn’t.

In this case, a neighbourhood plan had been through examination and had passed a referendum, but was yet to be made. As it was at a late stage in preparation, the inspector determined that it should carry considerable weight. He recorded that it was subject to a legal challenge and judgment had not yet been issued. Nevertheless, he ruled that “It is normal to assume that administrative acts are lawful unless and until they are quashed.” Consequently, the challenge did not reduce the weight he attached to the neighbourhood plan. He went on to allow the appeal.

So, if you are given any chat about needing to wait for the outcome of a legal challenge, this case provides it with a firm answer.

The following DCP section is relevant: 3.2

Wriggle room

An inspector who refused permission for a temporary mobile home associated with a vermiculture enterprise in north Yorkshire (DCS Number 200-006-878) might have opened a can of worms.

The appellant explained that he needed to be on hand to ensure the correct environment for the worms was maintained, as failure of the systems could result in a sudden mass exodus of worms out of the tubs and onto the dry and dusty floor which would result in death within minutes. The council, however, provided evidence that a number of dwellings had been available for both sale and rent in recent times in the village which could provide nearby accommodation for the appellant. Taking this and all other factors into account, the inspector was not convinced that the mobile home would be essential for the operation of the enterprise.

Watch out, inspector, even a worm will turn.

The following DCP section is relevant: 9.3343

A classic case

The issue of the planning unit comes up not infrequently, particularly in enforcement cases. As an inspector has recorded and helpfully set out in his decision (DCS Number 400-016-723), the classic definition is found in Burdle v Secretary of State for the Environment [1972]. Readers might find it useful to keep this somewhere handy.

The court held there were three issues to consider:

“First, that whenever it is possible to recognise a single main purpose of the occupier’s use of his land to which secondary activities are incidental or ancillary, the whole unit of occupation should be considered … But, secondly, it may equally be apt to consider the entire unit of occupation even though the occupier carries on a variety of activities and it is not possible to say that one is incidental or ancillary to another. This is well settled in the case of a composite use where the component activities fluctuate in their intensity from time to time but the different activities are not confined within separate and physically distinct areas of land. Thirdly, however, it may frequently occur that within a single unit of occupation two or more physically separate and distinct areas are occupied for substantially different and unrelated purposes. In such a case each area used for a different main purpose (together with its incidental and ancillary activities) ought to be considered as a separate planning unit.”

An oldie but a goodie.

The following DCP section is relevant: 4.324