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Raising the bar

We all know that we sometimes have to walk a tightrope, balancing public interests against the interests of planning applicants. An inspector recently did just that, in a finely balanced decision relating to an appeal against the refusal of permission for a flying trapeze in the back garden of a house in Gloucestershire (DCS Number 400-017-774).

In the end the decision swung against the appellant, the inspector concluding that, even though users of the trapeze rig would be focusing on their activities rather than looking towards other properties, the perception of overlooking would remain. The rig would also appear as an incongruous feature in the residential context, he held.

Thank goodness the inspector knew which way to jump, otherwise the whole thing could have turned into a three-ring circus.

The issues raised by a number of other types of garden structures are illustrated at Section 12.837 of DCP Online.

In the first instance

In allowing an appeal against the refusal of permission for the change of use of a semi-detached dwelling on a housing estate in southeast London to a house in multiple occupation (DCS Number 400-017-753) an inspector noted that:

“There were a number of objections to the change of use and the development as a whole. However, I note that the appeal before me does not involve questions of character and appearance, the living conditions of neighbouring properties or parking because these matters were deemed satisfactory by the Council.”

How does that square, though, with Section 79(1) of the Town and Country Planning Act 1990 which states that “On an appeal under section 78 the Secretary of State may …. deal with the application as if it had been made to him in the first instance.”? If there were a number of objections should they not have been addressed?

Readers might be aware that Buckfastleigh Town Council has recently dissolved its planning committee, claiming that nobody was listening to them anyway. Wherever can they have got that idea from.

The topic of local public opinion is discussed at Section 3.9 of DCP Online.

Fuel to the fire

Readers interested in the hot topic of whether the amalgamation of residential units to form a single dwelling is a material change of use might wish to note the outcome of an appeal against the refusal of a certificate of lawfulness in north London (DCS Number 400-017-738).

This case concerned the amalgamation of two dwellings to form one dwelling. The council argued that it would be a material change of use due to the under-occupation of the dwelling which would materially alter the character of the way it was occupied.

In the inspector’s opinion the changes associated with the amalgamation of the two dwellings into one would have to be such that there was a material difference in the way the property was occupied, and given that the nature of the use remained residential, he held that such a change would have to be quite significant. Having examined occupancy figures supplied by the council, the inspector found it highly unlikely that the level of occupation would be so different as to alter the character of occupation to such an extent that it would be reasonable to conclude there had been a material change of use. Further, the council had not explained what significant changes were likely to be perceptible due to under-occupation and there was no evidence such changes had come about. The inspector concluded that the amalgamation of the two dwellings had not led to a material change of use and as such it was not development.

This topic is also the subject of two earlier Blogs: The topsy turvy world of flat amalgamation and A case of interpretation; and is covered at section 11.1112 of DCP Online.

Fine words

As planners we strive for clarity and precision when writing committee reports and site appraisals, so it’s useful to keep a mental folder of relevant vocabulary. You might like to file the following from a recent appeal decision (DCS Number 400-017-750).

“It …. is enclosed …. by trapezoidal section steel cladding.” and “The roof is sinusoidal profile asbestos sheeting.” Is that class, or what? It’s certainly a step up from ‘wriggly tin’ and ‘corrugated asbestos’.

Happy to share.

The wind of change

A reporter has allowed a two-year extension of a temporary permission for three 198m high wind turbines on the west coast of Scotland (DCS Number 400-017-660), notwithstanding residents’ concerns about the effect on their health.

The adverse health effects referred to by residents included headaches, dizziness and disorientation, nausea, lack of concentration and sleeplessness, and were attributed to infrasound and amplitude modulation. The reporter noted that infrasound is sound below the level of human hearing, and amplitude modulation is the variation of noise in a regular manner when turbine blades pass the tower. Residents contended that extensive evidence is available from around the world that chronic symptoms of long term exposure to the operation of wind turbines include the symptoms they reported.

The reporter recorded, however, that most of the evidence he had received from professional sources lent limited support, at most, for that view. Health Protection Scotland, whose views he accorded very considerable weight, considered four independent systematic literature reviews, including literature on infrasound and amplitude modulation. It noted that all the reviews concluded that there is sufficient evidence to confirm a clear association between wind turbine noise and annoyance, and that such annoyance is related to, but not necessarily causally linked to, levels of anxiety, sleep disturbance and stress. Apart from this, however, HPS found that none of the reviews found sufficient evidence to confirm a causal relationship between wind turbine noise and the type of health complaints cited by local residents.

An assessment by NHS Ayrshire & Arran also deserved considerable weight, the reported decided. He noted that it reviewed “the highest quality international scientific research that is available”, and said that there is no peer-reviewed scientific data to support a claim that wind turbines are causing disease or adverse health effects in humans; that evidence for a set of health effects from exposure to wind turbines that could be characterised as a “wind turbine syndrome” is of questionable quality and does not prove causation; and that assuming that reported symptoms are solely related to a source such as wind turbines without evaluating for other known causes of these symptoms is not consistent with best medical practice.

Turning to locally-based evidence, the reported recorded that NHS Ayrshire & Arran had analysed local general practice data from 2009 to 2016 to establish whether the reporting of dizziness increased in the surrounding population once the turbines had became operational. It found that the data did not show any increase in the number of people reporting symptoms of dizziness to their doctor following the installation of the first wind turbine, and the numbers were relatively consistent year-on-year.

The reporter concluded that the balance of evidence indicated that the appeal should not be refused on the basis of adverse effects on the health of the local population. He reasoned that in the event that a causal link was established between turbine operation at the appeal site and such effects, it could be addressed through environmental protection and public health legislation. Consequently, even with a reasonable application of the precautionary principle, he did not consider that the evidence of adverse effects on the health of the local population was sufficient to justify or support refusal.

What strikes us here on the Blog, though, is that with increasing emphasis on mental health does this conclusion focus attention a little too much on physical wellbeing? What do readers think?

The health effects of wind turbines are discussed at section 26.5323 of DCP Online.

Fair game?

In support of an appeal against an enforcement notice requiring the demolition of a timber structure in an open field in Bedfordshire (DCS Number 400-017-670) the appellant described the structure as intended for the breeding of game birds. On this basis he claimed that it did not require planning permission as it was intended for agricultural use.

The inspector noted, however, that in response to a planning contravention notice the appellant had previously described the structure as a tree house for his eight-year-old son and friends to play in. The inspector observed that the structure appeared as a timber shed on a platform supported by wooden poles and having a balustrade balcony.

The Blog might have enquired as to why game birds required a balustraded balcony – cocktails on the verandah? The inspector was a little more shrewd, side-stepping the lack of consistency by explaining that even if it were the intention to use the structure for agricultural purposes it could not be permitted development under Part 6 of Schedule 2 of the GPDO as no application for prior approval had been made. That saved him from saying that it was a cock and bull story.

Readers wondering whether game bird rearing ought to be considered as agriculture, anyway, might wish to note that the subject is discussed in section 9.3343 of DCP Online.

New year, new experiences

An inspector dealing with an appeal against the refusal of planning permission for the extension and conversion of a large house in the west Midlands to nine flats (DCS Number 400-017-594) has pointed out that the national internal space standards are only applicable where a relevant local plan policy is in place:

“The Council raised concern that the development would be contrary to the Nationally Described Space Standards. However, the Written Ministerial Statement of 25 March 2015 makes it clear that such standards can only be applied where there is a relevant current local plan policy. In this case, there is no relevant policy and consequently this is not a matter which carries weight against the proposal.”

Those who resolved to try out some new experiences in the new year might be interested to hear about a new searchable database of local plan policies, especially if this case reminds them that they have similar gaps in their local plans.

You can register for a free trial here.

The offside rule

A quick scan of the appeal record reveals any number of examples of arguments concerning what constitutes the side elevation of a dwelling. In dealing with an appeal against the refusal of a lawful development certificate for a two storey rear extension to a dwelling in south London (DCS Number 400-017-646), an inspector decided that a bay window in the rear elevation was part and parcel of the rear wall.

The house had a shallow trapezoid single storey bay window in the rear elevation, the inspector recorded. He noted that if the sides of the bay window were considered to be walls forming a side elevation of the original dwellinghouse the two storey rear extension would not comply with the limitations set out in Class A of Schedule 2 Part 1 of the GPDO. He acknowledged that the Government’s Technical Guidance states that a wall forming a side elevation of a house will be any wall that cannot be identified as being a front wall or a rear wall. Nevertheless, taking into account the very small projection, no more than 0.5m, the shallow angle of the side panels, the relatively flimsy construction and the single storey nature of the bay, he took the view that the bay window was merely a detail of the rear wall of the original dwellinghouse, as a matter of fact and degree. Therefore, the extension did not exceed the Class A limitations and hence would be development permitted by the GPDO.

Guidance concerning interpretation of the permitted development classes can be found at section 4.342 of DCP Online.

A matter of substance

Councils tend to be a bit cautious in dealing with amendments to planning applications, not unreasonably in our view as it is so easy to be caught out. That said, the planning system ought to be able to accommodate refinements to development proposals without all parties involved having to start again at square one. A recent appeal decision (DCS Number 200-007-183) indicates that amendments ought to be refused consideration as such only if they are substantially different from the original proposal.

In deciding whether to consider an amended proposal for approval of reserved matters relating to a housing scheme in Worcestershire, the inspector cited relevant case law set out in Inverclyde District Council v Secretary of State for Scotland [1981].

The Inverclyde judgement refers to the whole character having to be altered to render an amendment unacceptable, the inspector recorded. He considered that this is a high bar, and in the case before him there were basic aspects of the character of the proposal which had not changed. Examples of this were the access to the site and the nature of the access roads, the quantum and type of development, the locations of open space, landscape design principles and parking arrangements. He considered that these similarities resulted in the character changes being well below what could be considered to be the alteration of the whole character of the original submission. Accordingly, he was satisfied that consideration of the amended submission was lawful, and proceeded to a decision on that basis.

Section 5.135 of DCP Online concerns amendments to planning applications.

No room at the inn

As we remember the story of an infant child in need of shelter we might take a charitable view of an inspector’s decision to grant temporary permission for four unauthorised Traveller pitches in the green belt in Yorkshire, after he gave weight to the needs of the children on the site (DCS Number 200-007-139).

The inspector found harm to the green belt through inappropriate development, detriment to openness, encroachment into the countryside, and harm to the character and appearance of the area. He reasoned, however, that since there was a lack of available, alternative sites, it was likely that dismissing the appeals would force the family to resort to roadside camping. With ten young children and two more babies on the way, he attached significant weight to the appellants’ and their family’s personal circumstances.

The inspector explained that the human rights assessment must involve regard to the best interests of any children on the site. He recorded that ZH (Tanzania) v Secretary of State for the Home Department [2011]  and Elizabeth Collins v SSCLG [2013] established that the need to safeguard and promote the welfare of children is a primary consideration. Where rights under Article 8 of the European Convention on Human Rights include those of children, they must be viewed in this context, the inspector continued. The best interests of the child are not determinative, he explained, but no other consideration must be regarded as more important, or given greater weight, merely by virtue of its inherent nature.

The inspector quashed the enforcement notice, concluding that the grant of a three-year personal permission was proportionate and necessary; it would protect the green belt in the long term whilst meeting the best interests of the children and avoiding a violation of the occupiers’ rights under the Human Rights Act.

This decision must come as very welcome news to two expectant mothers who will not now be forced to take to the road after all.

The DCP Blog wishes all its readers a very merry Christmas!

Section 4.1253 of DCP Online concerns Article 8 of the ECHR – the right to respect for private and family life