A day-by-day digest of new legal and practice developments updating the information contained in DCP. Any comments on the matters highlighted here may be posted on the DCP discussion board. On a weekly basis the following points will be moved to the relevant Editor’s Notes section of DCP. The points will be incorporated into the relevant DCP section the next time that it is updated.

Retention of historic shop front upheld: The High Court has supported an inspector’s decision to refuse listed building consent to replace a 19th century shop front with a domestic window (DCS No. 100-058-758). The 17th//18th century premises in a conservation area in Oundle, Northamptonshire had been granted planning permission  to be converted to a dwelling.  The inspector had reasoned that PPG15 supported the retention of historic shop fronts and was not convinced that the structural works necessary to stabilise the front of the building  need entail the permanent loss of the feature. In addition it was felt that retention would not result in a poor environment for the occupants of the dwelling given ‘a more imaginative approach to provide improved living conditions’. The court held that the inspector had sufficient evidence to support the decision and had given adequate reasons Wilson Dyer Gough v SOS 18/11/2008. This information was posted on 19/11/2008 and updates DCP at (27.2326).

Generic enforcement teams should be resisted: The idea of generic enforcement teams has been criticised at the second annual conference of the National Association for Planning Enforcement. The chair of the Association is reported as saying that generic enforcement teams, which would carry out all the enforcement functions of a local authority, would dilute the effectiveness of planning enforcement officers by engaging them in other matters for which they have little knowledge or training. In such authorities the burden of taking action would be passed back to development control officers. This information was posted on 18/11/2008 and updates DCP at (4.5).

Enforcement against house concealed in barn: Derbyshire Dales DC has taken enforcement action against a house erected within the facade of a barn constructed of corrugated iron and wood. It maintains that a deliberate act of concealment had taken place and that the unauthorised dwelling did not benefit from the four-year rule as the immunity period did not commence until the shielding had been removed. NB. A similar case came to appeal earlier this year (DCS No.100-055-353). This concerned  enforcement action taken against a house erected within a straw bale enclosure and saw an inspector rule that the bales were part of the totality of the construction and it was necessary for them to be removed before the point of substantial completion had been reached. The inspector used the authority of the well-known  judgment in Sage to justify his reasoning. This information was posted on 17/11/2008 and updates DCP at (9.15) and (10.15).

Wind farm allowed: The SOS has been minded to allow a development consisting of twelve wind turbines at a site in the East Riding of Yorkshire. It was concluded that the proposal was supported by development plan policies on renewable energy. While there would be harm to the setting of a conservation area and listed buildings, there were mitigating factors related to distance and topography. There would also be no harm to aviation safety. The final decision of the SOS depends on the submission of an undertaking relating to the operation of a community fund, and agreement on the form of conditions related to radio and TV interference and an interpretation board. This information was posted on 17/11/2008 and updates DCP at (26.532).

Sex shop appeal fails: The Court of Appeal has upheld the decision of the High Court that a change of use to a sex shop from a car dealership was not permitted development under the GPDO regulations in operation at the time it occurred . It was ruled that the original inspector’s decision had been the proper one in the circumstances and that there had been no error in law. The inspector had concluded that the former use was a mixed one, including servicing, maintaining and repairing, not that described in the GPDO Part 3A, namely a use for the sale or display or motor cars. Thus the Order did not then give a permission for a change of use to a shop Cocktails Ltd v SOS 12/11/2008. This information was posted on 17/11/2008 and updates DCP at (13.5121).

Housing design not inclusive of open market and affordable residents: The SOS has dismissed an appeal relating to 168 market residential units and 81 affordable units in Kensington. The 0.84ha site was formerly occupied by a TA barracks. It was concluded that the benefits from the use of previously developed land in a highly sustainable situation were outweighed by the national requirement for a high quality inclusive design. It was felt that the separation of even one small part of the available open space from the residents of the affordable housing was a very serious drawback. The SOS concluded that it was possible to design a scheme at the same high density with a larger central courtyard available to all residents. This information was posted on 17/11/2008 and updates DCP at (7.337).

Council’s own decision quashed: The High Court has quashed a county council decision to grant itself permission for a new town centre bus station. A challenge was made by a development company which alleged that the decision threw into doubt its neighbouring development scheme. It was ruled that the council’s planning officer had failed to communicate to its planning committee the company’s concerns about changed levels to a road which could potentially affect a vital access to its development. The court held that this was clearly a material consideration and the failure to put it to committee led to unlawfulness. The council decision was quashed and it was recommended that any new decision be subject to a condition that would protect the development company’s interests Aldergate Projects Ltd v Nottinghamshire County Council.14/11/2008. This information was posted on 17/11/2008 and updates DCP at (5.221).

Lords insert garden protection clause into Planning Bill: The House of Lords has voted to amend the Planning Bill to enable the protection of gardens and green spaces. The amendment inserts a new section 71B into the 1990 Act which states “In exercise of any function under or by virtue of the planning Acts, the Greater London Authority Act 1999 (c. 29) or the Planning and Compulsory Purchase Act 2004 (c. 5), special regard shall be had to the desirability of preserving gardens, groups of gardens and urban green spaces.”  The amendment also places curbs on the SOS or other higher authority to override decisions of local authorities seeking to protect green space in accordance with local plan policy, unless essential to the achievement of national housing targets, or if the decision of the local planning authority was improper. It also provides that nothing in the new section shall be construed as enabling the SOS or higher tier planning authority to impose targets for local housing densities on a local planning authority in order to override the protection or preservation of gardens, or that would interfere with permitted development rights. However, the government view of the amendment is that it is unnecessary, given planning powers that are presently available, and it is unlikely to survive when the Planning Bill returns to the Commons. This information was posted on 14/11/2008 and updates DCP at (8.1336).

Gypsy decision upheld: The High Court has upheld a decision to dismiss an enforcement appeal relating to a green belt Gypsy site in Essex (DCS No. 100-040-489). The inspector had refused to give even a five year temporary permission. It was ruled that the inspector had been entitled to come to the decision that he had. He had to balance personal circumstances, including education needs, against the public interest in upholding the law and protecting landscapes. The court should not approach decision letters on a nit-picking fashion, and it could not conceivably be said that the inspector did not have regard to all the matters that he should have had regard to Coyle v SOS 10/11/2008. This information was posted on 12/11/2008 and updates DCP at (24.525).

AGLV business park allowed: The SOS has allowed an appeal relating to a new business park and access road at an edge of town site in south Devon (DCS No.100-058-542). It was felt that although the sites lay in open countryside, and the business park site was in an AGLV, there was some support for the scheme in development plan policies. It was noted that the AGLV boundaries were several decades old and had not been subject to review in accord with the requirements of PPS7. The SOS concluded that there would only be limited landscape impact, and acknowledged a strong employment need case. The provision of playing fields and the new access works would provide additional benefits to the community. This information was posted on 12/11/2008 and updates DCP at (4.253) and (14.1321).

Locals only housing policy supported in National Park: The High Court has upheld an appeal decision relating to an open market infill house in a Dartmoor village which did not comply with local policy requiring affordable housing for local people (DCS No. 100-058-722). It was argued to the court that the property would be covered by a covenant limiting potential owners to those that had lived or worked in Devon for three years. However, the  judge noted that policy required housing to be limited to people from the Dartmoor National Park and its immediate vicinity, and also that there should be a reduction of at least 25% from the open market value to fall within the definition of affordable housing for local people Balsdon v Dartmoor National Park Authority 11/11/2008. This information was posted on 12/11/2008 and updates DCP at (4.121) and (9.1323).

Buglife given right to challenge permission: The Court of Appeal has given a small conservation trust the right to challenge the decision of the Thurrock Thames Gateway Development Corporation to grant permission for a Royal Mail distribution hub. Buglife argued that the site was of the  utmost importance, being one of Britain’s three most important habitat areas for endangered invertebrates. An interesting aspect of the ruling was that the costs of both sides in the impending case were capped at £20,000. Last February the High Court had rejected a claim that too much emphasis had been given to the economic benefits of the development  at the expense of wildlife diversity Buglife -The Invertebrate Conservation Trust v Thurrock Thames Gateway Development Corporation 4/11/2008. This information was posted on 11/11/2008 and updates DCP at (4.1432).

Green belt housing/park-and-ride rejected: The SOS has dismissed proposals for a large housing scheme with employment and infrastructure uses, together with a rail/bus park-and-ride facility (DCS No. 100-058-471). The sites lay partly on green belt land broadly located between the built-up edge of Featherstone, Staffordshire and the A449 dual carriageway, and included derelict land formerly part of a Royal Ordnance Factory. It was concluded that the schemes would cause loss of openness and would not aid urban regeneration, although the park-and-ride proposal and new railway station were not in themselves green belt inappropriate. However, the overall policy objections outweighed the provision of 9.3ha of well located and accessible employment land, the bringing back into use and remediation of a derelict site, improvements to transport infrastructure and the provision of much needed affordable housing. This information was posted on 11/11/2008 and updates DCP at (4.251).

Business park extension denied in green belt: The SOS has dismissed an appeal relating to an extension of Birmingham Business Park to provide 40,000sq.m of floorspace (DCS No.100-058-567). The 9.27ha site on the edge of Solihull was allocated as green belt land. It was concluded that there would be harm because of green belt inappropriateness and loss of openness, although the extent of the latter harm was lessened to a degree because of other development in the area. It was noted that green belt fragmentation which had already occurred to the west of the M42 prompted an adverse reflection on the permanence of the designation.  However, overall the SOS concluded that the benefits of the development did not amount to very special circumstances such as would outweigh green belt policy harm. This information was posted on 11/11/2008 and updates DCP at (4.251).

Cladding decision remitted due to breach of natural justice: The High Court has remitted an appeal decision  related to the retention of brick cladding at a newly built house alongside the River Thames in Shepperton.  A condition had required painted render or timber cladding, and an inspector had concluded that the all brick finish of the dwelling stood out as an uncharacteristic feature. The court ruled that there had been a breach of natural justice in that the written submissions made to the inspector by the local authority had not been sent to the appellant’s agent. There was a risk of injustice arising from the fact that the agent was led to believe that there were no written representations from the council to the inspector Fuller v SOS 31/10/2008. This information was posted on 10/11/2008 and updates DCP at (5.343) and (4.107).

Human rights interference plea rejected:  The High Court has rejected a challenge to an inspector’s decision to dismiss an appeal relating to an AONB Gypsy site in Somerset (DCS No.100-049-200). It was argued that the inspector had failed to take in account planning guidance favourable to Gypsies and travellers, the educational needs of two children and human rights.  The judge gave credit to the Gypsies for applying for planning permission before moving onto the site, but felt that there had to be distinction between interference with family life in a future home and one that was already established Rafferty and Another v SOS 5/11/2008. This information was posted on 10/11/2008 and updates DCP at (24.535) and (4.125).

Golf resort allowed: Donald Trump’s controversial proposal for a golf resort at Balmedie, Aberdeenshire has been approved by the Scottish Government (DCS No. 100-058-544). The proposal included two golf courses, a 450 bed-roomed hotel, a conference centre and spa, 950 flats, 36 golf villas and 500 open market houses. The called-in scheme was felt to provide sufficient economic and social benefits to override alleged harm to a coastal dune area and SSSI. This information was posted on 10/11/2008 and updates DCP at (18.2322).

Scheme rejected on design grounds: The SOS has dismissed a proposal for a mixed use development on an edge-of-centre site in Godalming, contrary to an inspector’s recommendation (DCS No. 100-058-474). Part of the 1.6ha site had been a gasworks. The SOS concluded that the development, which included an eight-storey tower, would enable the redevelopment of a contaminated site in a sustainable location and the provision of off-site affordable housing. The site could accommodate buildings of the scale, mass and height proposed, but there were deficiencies in the design which weighed heavily against the scheme. This information was posted on 10/11/2008 and updates DCP at (4.132) and (4.133).

Airport car facility was not storage: The High Court has upheld an inspector’s decision in an enforcement appeal case (DCS No. 100-057-264) that a storage facility could not lawfully be used for the short-term indoor storage of cars for travellers from Stansted Airport. The site consisted of former poultry buildings where permission had subsequently been granted for storage use. An inspector had concluded that there had been a material change of use due to the fundamentally different characteristics of the activity enforced against as compared with storage. The judge held that parking was incidental to the use of a car, whereas storage was the converse of the use of a car, and noted that the fact that cars were brought to the site by a hotel, rather than by individual owners, made no difference Honeycomb Storage v SOS 3/11/2008. This information was posted on 10/11/2008 and updates DCP at (20.5111).

Housing rejected at green belt quarry site: The SOS has dismissed an appeal relating to a housing development of up to 350 units. The 25.7ha site was a former quarry located in a green belt area in Staffordshire (DCS No. 100-058-472). The SOS concluded that although the development would make a significant contribution towards meeting affordable housing aims, harm to green belt policy and regeneration aims was outweighing. This information was posted on 5/11/2008 and updates DCP at (4.251).

Draft Eco-town PPS: A draft PPS on eco-towns has been issued by the CLG which defines what constitutes an eco-town, what environmental, social, and economic standards these developments should achieve and how eco-towns relate to the planning system. It states that eco-towns will be developments of a minimum of 5,000 homes - well linked to, but distinct from, existing settlements - that achieve the highest standards of environmental sustainability, including: employing renewable energy technologies, exceptionally high quality of environmental building design and excellent public transport. Consultation ends on the 19th February 2009. The document may be downloaded at http://www.communities.gov.uk/publications/planningandbuilding/ppsecotowns This information was posted on 4/11/2008 and updates DCP at (7.131).

Latest English appeals statistics: The Planning Inspectorate has issued its authority by authority quarterly return for planning appeals dealt with in the period July-September 2008. The document may be downloaded at  http://www.planning-inspectorate.gov.uk/pins/appeals/planning_appeals/verification_table/verification_index.htm  This information was posted on 31/10/2008 and updates DCP at (3.151) .

New Scottish advice: The Scottish Government has issued SPP 23 Planning and the Historic Environment which replaces and consolidates NPPG18 and NPPG5 on Archaeology. The document may be downloaded from .http://www.scotland.gov.uk/Publications/2008/10/28135841/0  Published concurrently is the first two parts of Scottish Planning Policy a general statement of land use planning policy in Scotland, which may be downloaded from http://www.scotland.gov.uk/Publications/2008/10/28115149/0 This information was posted on 31/10/2008 and updates DCP at (27.1) and (4.24) .

Electronic planning in Scotland near: In a document entitled Delivering Planning Reform the Scottish Government has announced that it will formally launch an electronic planning system next Spring. The document also states that consideration will be given by the end of the year as to whether there is scope for introducing a non-statutory method of giving a provisional view on whether or not a major development  is likely to receive planning permission. This, it is averred, will give developers and investors a degree of confidence before they commit to lengthy and expensive technical appraisals. The whole document may be viewed at http://www.scotland.gov.uk/Publications/2008/10/27130725/0 This information was posted on 31/10/2008 and updates DCP at (5.142).

Maladministration found in notification and report procedures: The Ombudsman has found that failure to provide a full report to members was a flaw in a council’s decision making process. Maladministration had also occurred in that a neighbour, the complainant, had not been notified of the application in writing. The proposal was for a replacement dwelling in a conservation area and AONB, and the complainant’s property, albeit a detached piece of garden across a lane, immediately adjoined the site. The case officer had recommended that the application be refused but failed to include the opinions of a conservation officer and a policy officer in her report. The application was subsequently approved. The Ombudsman noted that the outcome of the application would not have been different had the maladministration not occurred, but recommended compensation for the complainant’s outrage at being deprived of an opportunity to express her objections to members at the appropriate time. The report may be viewed at http://www.lgo.org.uk/news/info.php?refnum=268&startnum   Complaint no 07/B/06575 Bath and NE Somerset Council 21/10/2008. This information was posted on 30/10/2008 and updates DCP at (5.221) and (5.155).

Wind farm developments being slowed by planning system: The Wind Energy Association is reported to be calling for specific planning performance agreements for on-shore wind farm applications. It states that of the 167 applications made in the UK since January 2006 only 54% have won consent at the local level, and notes figures showing that typically wind farms are taking two years to negotiate the planning system. This information was posted on 30/10/2008 and updates DCP at (26.532).

GPDO revision criticisms: Criticism of the recent amendments to Part 1 permitted development rights in England is coming from a number of quarters. In a legal commentary in the RTPI Planning Matters web learning resource planning lawyer Martin Goodall states that “having laboured the mountain has brought forth a mouse.  There are various minor relaxations compared with its predecessor, but the revised provisions seem far less radical than we had originally been led to expect. Not only that, but a whole raft of new drafting errors and infelicities will cause even more problems of interpretation than its predecessor“ After assessing the revised panoply of restrictions on what may be permitted development, Goodall concludes, “I begin to wonder why they bothered to amend the GPDO at all.”  Even more fulsome condemnation has come in the PAS related Communities of Practice forum on the revised GPDO where comments such as “complete and unadulterated farce”, “cumbersome, contradictory and ambiguous” have been posted. This information was posted on 30/10/2008 and updates DCP at (4.3421).

Scale and design of mixed use redevelopment acceptable: The SOS has overridden her inspector’s recommendation and allowed a housing and commercial redevelopment scheme on the northern edge of the City of London. Conservation area consent was also given. The development included up to 250 residential units and up to 13,402sq.m of B1. The main issues concerned design and visual impact. The SOS considered that the residential tower element was of very high quality and addressed the evaluation criteria in the EH/CABE Guidance on Tall Buildings. She did not agree with the inspector’s view that the office building element had a scale and mass inappropriate to street scenes. This information was posted on 30/10/2008 and updates DCP at (4.133).

Mast decision procedures at fault: The Scottish Public Services Ombudsman has criticised a local authority for providing a planning committee and objectors with inaccurate information on a planning application for a telecommunications mast. However, an associated complaint that the council failed to ensure that the mast complied with the planning consent was not upheld.  The council was recommended a) to apologise to the complainants for providing committee with inaccurate information; b) ensure that more thorough checks were made on documentation to ensure that those documents that were current, and those superseded, were clearly identified; and c) to ensure that in future planning reports to committee contained information on the history of the applications, comparing the original scheme with the final proposal and outlining any significant changes which may have been made Report no. 200700100 South Ayrshire Council 22/10/2008. This information was posted on 27/10/2008 and updates DCP at (5.2213).

New trees leaflet: The government has produced a leaflet for the benefit of tree owners, the general public and amenity groups. It deals with common questions about tree preservation procedures in the light of recent changes and replaces the former guide issued in 2004. The leaflet Protected Trees: A guide to Tree Preservation Procedures may be downloaded from http://www.communities.gov.uk/documents/planningandbuilding/pdf/protectedtreesguide.pdf  This information was posted on 27/10/2008 and updates DCP at (29.131).

Irish travellers’ eviction upheld: The Court of Appeal has upheld an eviction order against a group of Irish Travellers living at a site in Cambridgeshire. The order had expired on the last of the Easter term but the travellers had remained on site. It was argued that in the absence of alternative site availability the action taken was disproportionate and discriminatory. But it was ruled that the council, the SOS and the High Court had fully taken into account the travellers’ particular ethnic circumstances and needs South Cambridgeshire DC v O’Brian 24/10/2008. This information was posted on 27/10/2008 and updates DCP at (24.55).

Ombudsman’s recommendation not acted on: The Ombudsman has criticised a council for failing to remedy injustice by fulfilling his recommendations. The case concerned planning permission which had been given for a bungalow for a severely disabled child where the site was outside of a development boundary. The Ombudsman had previously found that there was maladministration in that committee had given no planning reasons for granting permission against officer advice. Injustice had been suffered by the complainants who had a reasonable expectation that the council would protect the settlement boundary and the setting and amenities of their property. In a second report it was stated that “the council’s continued intransigence in the face of the evidence was disappointing…the council appears to have an inadequate understanding of its responsibilities as a local planning authority”. The council had argued that the needs of the applicant outweighed the needs of the complainant, but the Ombudsman felt that this argument missed the point that a decision should have been based on the planning merits of the case. The report may be downloaded from http://www.lgo.org.uk/news/docs/265-06B09241FR.doc  Complaint no 06/B/09241 Oswestry BC 16/10/2008. This information was posted on 27/10/2008 and updates DCP at (9.236).

Curtilage barn building was not listed: The High Court has rejected a claim from a neighbour that a nearby property was listed, and consequently listed building consent was required for extending it. The property was formerly a barn associated with a listed farmhouse, and was now in use as a B & B. It was argued to the court that at the time of the listing of the farmhouse in 1984, the B & B building also became listed by reason of falling within its curtilage. At the time there was common ownership and gaps in a surrounding wall to allow access from the farmhouse to the barn. The court found that on the basis of evidence, including an aerial photograph, the council were entitled to conclude that the barn was not caught by the listing  Egerton v Taunton Deane BC 24/10/2008. This information was posted on 27/10/2008 and updates DCP at (4.374).

Green wedge loss outweighed by need: The SOS has allowed a proposal for 900 dwellings, employment uses and associated infrastructure on land in Taunton, Somerset (DCS No. 100-058-392). The SOS noted that the site was in a ‘green wedge’ but was otherwise in accord with development plan policies.  However, the amount of green wedge lost would only be 0.2% of its total area. The site was in a sustainable location and would provide much needed strategic growth in the Taunton area. Its development would also assist in remedying a shortfall for market and affordable housing. This information was posted on 24/10/2008 and updates DCP at (4.2542).

Second homes use class rejected: Calls for a new Use Class covering second homes have been rejected by the government.  In a statement in the Lords debate on the Planning Bill, Baroness Andrews said that there was a real difficulty in introducing a new use class on second homes, the problem being that the properties used as second homes are usually normal dwelling houses, irrespectively of how regularly they are used. It was felt that it might be very difficult to prove use of a dwelling as a second home. “People use second homes for a wide range of interests, and purposes and lifestyles are so different that enforcement is likely to be very difficult.”  Specifically rejected was the proposal, raised in the July 2008 report Living Working Countryside: the Taylor Review of Rural Economy and Affordable Housing, that a pilot study be conducted into controlling second homes in one national park. This information was posted on 24/10/2008 and updates DCP at (4.1211).

Survey on application downturn: The Planning Portal is running a short on-line survey to ascertain views on the likely downturn in the number of planning applications given the current economic situation and the recent amendments to the GPDO. A link to the survey document is http://www.surveymonkey.com/Home_Landing.aspx  The issue is also one which is current thread in the Discussion feature on the DCP online web site. This information was posted on 24/10/2008 and updates DCP at (2.8).

Thames side development allowed: The SOS has allowed a proposal for 335 dwellings on the site of the former Kingston power station in SW London (DCS No. 100-058-393). The 1.48ha site, now vacant land, was located alongside the River Thames and the scheme comprised elements of 15, 10 and 6 storeys. The SOS concluded that the development would regenerate an unattractive brownfield site which had lain idle for 20 years, save a number of unauthorised temporary uses. There would be a significant contribution to housing targets and to the provision of affordable housing. In the latter respect the 20% provision proposed did not meet the level required by the development plan, but the site had special costs in terms of viability considerations, including the need to encapsulate an existing electricity sub-station. There were no harmful effects on townscape, conservation areas or the grade II* listed Kingston Bridge. This information was posted on 24/10/2008 and updates DCP at (7.3332).

Curb on takeaways proposed: A London Borough is consulting on proposals to curb concentrations of fast food takeaways in a range of retail locations and within 400m of schools, youth centres and parks. The move is partly in response to the council’s unease that the Borough has too many takeaway establishments and partly due to a concern over child obesity. The consultation document may be downloaded from http://www.walthamforest.gov.uk/spd-hot-food-shops-consultation-daftoct08.pdf  This information was posted on 22/10/2008 and updates DCP at (16.232).

Housing allowed on ASR: The SOS has disagreed with her inspector and allowed a 200 unit housing development on 4.3ha of land in Wickford, Essex (DCS No. 100-058-324).The site had formerly been designated as green belt and was now allocated as an Area of Special Reserve (ASR). It was acknowledged that the designation as an ASR was not equivalent to allocation as a housing site. However, the SOS noted that the council could not demonstrated a five-year housing land supply and for many years the rate of delivery for new dwellings had been well below that needed to meet the minimum requirement set by the RSS. The site was sustainably located and there was no reason to refuse planning permission on account of the proposal’s impact on the local highway network, schools and other local infrastructure and features of biodiversity interest.  Neither did loss of agricultural land or impact on town centre regeneration weigh against the proposal. This information was posted on 20/10/2008 and updates DCP at (7.1322).

Green belt recycling plant decision upheld: The High Court has upheld an appeal decision to allow a building waste recycling unit in Surrey (DCS No  100-048-447). The challenge had been mounted by the County Council on the basis that the development would harm a green belt area and would add to countryside encroachment.  These were not the ‘very special circumstances’ required to justify the grant of permission, and the inspector’s decision had failed to give proper, adequate and intelligible reasons. The court held that the inspector had fully addressed the environmental impact and did so in language that was ready understandable, and demonstrated what his conclusions were and why he reached them. It was impossible to conclude that the carefully worded decision was perverse.  Surrey County Council v SOS 17/10/2008  This information was posted on 20/10/2008 and updates DCP at (25.43) and (4.2513).

Maladministration found over council’s own application procedures: The Ombudsman has found maladministration over the way a council handled its own planning application for an extension to a school. Complaints had been made that the council failed to notify residents of the application, failed to consider properly the impact on residents’ amenity, failed to conduct an EIA, failed to enforce conditions, failed to consult on the appropriation of MOL, wrongly granted itself Listed Building Consent and Conservation Area Consents for works to the boundary wall and demolition of a parks depot building, and failed to report the objections of the Greater London Authority to the application. The complainants also considered that the development was substantially larger than indicated by the approved plans. The Ombudsman found that there was maladministration with regard to many aspects of the grounds for complaint, but was not persuaded that, at the end of the day, the development outcome would have been different. The maladministration was due to sloppy administration rather than deliberate intent. The report concluded “As it was considering its own proposals for development, the Council should have ensured that it was meticulous in complying with procedures for considering the application and that it was transparent in doing so. Its failure to do so here undermines the Council’s ability to earn the trust of the public.”  Compensation was recommended for the justifiable sense of outrage caused to the complainants, together with a) a review of whether the development was being built in accord with plans, and b) a review of procedure in dealing with council developments Complaints nos 06/B/05262 etc Greenwich LB 9/10/2008. This information was posted on 17/10/2008 and updates DCP at (5.113).

Four-year rule plea rejected: The High Court has upheld an enforcement appeal decision relating to the unauthorised residential and artist studio use of farm buildings in Cornwall (DCS No.100-056-497). It was argued that the use was immune from planning control by reason of the four-year rule. The court ruled that the overall picture presented by the inspector was of someone who had moved into the agricultural buildings and was in the process of converting them into a dwellinghouse. But these works were very far from complete at the requisite date, when there was no evidence that these buildings could have provided the facilities requited for day-to-day domestic existence. There was no arguable error of law made by the inspector Hill v SOS 15/10/2008. This information was posted on 16/10/2008 and updates DCP at (10.151) and (4.5353).

Model conditions produced by PINS: The Planning Inspectorate has issued a list of model conditions to supplement those in Circular 11/95. The list is qualified by the statement that their applicability will need to be considered in each case against the tests in Circular 11/95, and the wording may have to be altered to address the individual circumstances of the case. The list ranges over 23 different topics and may be downloaded from http://www.planning-inspectorate.gov.uk/pins/appeals/model_conditions.html  This information was posted on 16/10/2008 and updates DCP at (4.4).

LDC wrongly issued: The Ombudsman has found maladministration in a case where an LDC was wrongfully issued for a house extension. The property was in a conservation area where an Article 4 Direction was in force removing relevant permitted development rights. The council recognised that they were in error and had considered revoking the LDC via judicial review or by section 193(7) of the 1990 Act. A further aspect to the complaint was the fact that the wife of the applicant for the LDC worked in the council’s building control department. The Ombudsman found that there was no evidence that the decision to issue the LDC was due to information having been withheld or false information having being supplied as required by section 193(7). Neither was there evidence of any impropriety deriving from the fact that the LDC was issued by an officer who may have worked along side the partner of the applicant. However, the decision had been made in error and the council should have taken more robust action to secure revocation through t he medium of judicial review. This could have been achieved if an individual councillor had challenged the issue of the certificate. The Ombudsman recommended that compensation be paid Complaint no 07/A/06244 Ealing LB 7/10/2008. This information was posted on 15/10/2008 and updates DCP at (5.211) and (6.21).

Wind turbine decision upheld: The Court of Appeal has upheld a High Court decision last July to reject a challenge to a 7 turbine wind-farm permission.It was argued that the area (near Milton Keynes) did not have sufficient wind to justify the landscape harm. The appeal judges felt that the arguments against the local authority’s decision fell far short of establishing the sort of clear cut case that was necessary. It was also ruled that the appellant had failed to make the challenge ‘promptly’  Finn-Kelcey v Milton Keynes Council 10/10/2008. This information was posted on 14/10/2008 and updates DCP at (26.532) and (4.1132).

Total-care development rejection upheld: The High Court has upheld an appeal decision which resulted in the rejection of a 100 unit total-care ‘village’ on a 1.74ha site in Hereford (DCS No. 100-048-898). It was claimed that an inspector had made an error in law by taking into account possible alternative sites for the scheme when the existence of other sites was irrelevant to the decision  It was also claimed that in supporting policy relating to loss of employment land the inspector had failed to understand, or even consider, that there was already more than 53,000 square feet of land on the market in Hereford  It was ruled that where the developer was relying on need for facilities for elderly people to justify development plan conflict it was clearly a matter of common sense for the inspector to ask whether that need could be met on alternative sites Bovale Ltd v SOS 13/10/2008. This information was posted on 14/10/2008 and updates DCP at (11.335) and (4.193).

Boar farm case to be reviewed: The High Court has ruled that a Devon wild boar farmer had an arguable case to contest an appeal decision. In upholding an enforcement notice an inspector had found that there was insufficient agricultural justification for the retention of residential caravans, a shop and other associated hardstandings and structures (DCS No. 100-051-411).  The case was adjourned for the farmer to seek legal advice and for the court to seek more information from the local authority Dedames v SOS 9/10/2008. This information was posted on 13/10/2008 and updates DCP at (9.334).

Time scale for registration of appeals has improved: The latest issue of the Planning Inspectorate Newsletter contains an article stating that typically new appeals are now being registered within three days of them being received. This follows a reported backlog in registration in 2007. The article asks appellants submitting plans and drawings derived from local authority web sites to ensure sufficient quality. “Too often the plans/drawings submitted with the appeal are found to be lacking in detail or have not been printed to scale on the correct sized paper.“  The article, which may be viewed at http://www.planning-inspectorate.gov.uk/pins/publications/newsletter/issue_10/planning_appeal_back_on_track.htm , concludes that if it is necessary for the Inspectorate to request true copies this inevitably means that the starting of the appeal will be delayed. This information was posted on 10/10/2008 and updates DCP at (5.3)
 

Stansted expansion allowed: The government has allowed the expansion of activity at Stansted Airport by relaxing existing conditions restricting passenger throughput and aircraft take-offs and landings (DCS No 100-058-038). It was concluded that the proposal would accord with the Air Transport White Paper and did not conflict with the development plan. There was no evidence that the proposal would breach policies relating to nitrogen deposition on vegetation, or present problems for water resources or sewerage/drainage capacity. Although there would be additional noise/air pollution,  these effects would be small and did not override the factors weighing in favour. This information was posted on 9/10/2008 and updates DCP at (26.431).

Freight interchange rejected: The SOS has rejected a proposal for a ‘strategic rail freight interchange’ on green belt land in Radlett, Hertfordshire . (DCS 100-057-971).  Much of the site comprised land formerly worked for gravel but now restored to agricultural use. It was concluded that there would be substantial green belt harm in terms of loss of openness, encroachment into the countryside, and substantial urban sprawl. There were a number of local economic benefits and planning gains such as a new by-pass, which would occur as the result of the proposals, but these did not outweigh the green belt objections. The SOS considered that the regional need for such a facility could have been a material consideration of considerable weight, but the appellant’s assessment that there were no alternative sites was “materially flawed” and its results were “wholly unconvincing”.  This information was posted on 8/10/2008 and updates DCP at (26.417).

Care home developments allowed in green belt: The SOS has allowed developments within the curtilage an existing Leonard Cheshire care home in a green belt area to the north of London (DCS No 100-058-025). It was concluded that the slight harm to openness and small scale encroachment was outweighed by the on-going need for the development and the lack of alternative sites. There was a pressing need for the facility to be upgraded to meet Commission for Social Care standards. This information was posted on 8/10/2008 and updates DCP at (11.3321).

Housing had been commenced: The High Court has rejected a rival developer’s challenge to a 138 unit housing development in Chippenham.  Redcliffe Homes Ltd had argued that Taylor Wimpey had failed to start the development within the strict timetable required by a 2007 planning permission. This was despite the fact that the local authority had issued an LDC affirming that the scheme had been effectively commenced before the conditional deadline by construction works at a road junction Redcliffe Homes Ltd v North Wiltshire DC 6/10/2007, This information was posted on 7/10/2008 and updates DCP at (7.143).

Guidance on propriety in SOS decision making: The SOS has issued good practice guidance on Planning Propriety Issues. The document deals with the propriety matters that can arise in connection with the SOS exercising decision making functions, principally in respect of recovered and called-in cases, but also relating to Regional Spatial Strategies and Local Development Documents. The objective of the document was stated to be to ensure that decisions were properly taken and to avoid, as far a possible, the risk of successful legal challenge of decisions. It may be downloaded from http://www.communities.gov.uk/publications/planningandbuilding/guidanceplanningpropriety  This information was posted on 7/10/2008 and updates DCP at (3.14), (3.15) and (6.4).

Coventry Airport decision upheld: The High Court has upheld the SOS’s decision to reject plans for the expansion of the capacity of West Midlands International Airport at Coventry.  After a joint inquiry (DCS No.100-049-166), the Secretaries of State had concluded that, although there were significant economic benefits flowing from the proposal, there would still be noise harm to residential property, particularly at unsocial hours, despite a mitigation/compensation package. There would also be poor public transport accessibility. The court ruled that the ministerial decision had taken account of all the essentials and had represented “a proper planning balance” West Midlands International Airport v SOS 6/10/2008  This information was posted on 7/10/2008 and updates DCP at (4.1379) & (26.431).

Injunction to prevent further listed barn damage: The High Court has granted an emergency injunction restraining a farmer from causing further damage to a listed barn in Wiltshire. The order bars the farmer from the barn, except for the purpose of inspections related to making listed building applications or carrying out works authorised by a listed building consent.  In 2006 the individual had been fined by magistrates for demolishing another barn hours before a council’s specialist contractors were due to take action to save it Salisbury DC v Bruce-White 2/10/2008. This information was posted on 6/10/2008 and updates DCP at (27.15).

New TPO guidance: The SOS has published advice entitled Tree Preservation Orders: A Guide to Law and Good Practice. The document sets out guidance incorporating the changes to changes to the TPO system which came into force on 1/10/2008. These changes include a mandatory standard application form and a fast-track appeals system. A revised model TPO is also available. The documents may be viewed at http://www.communities.gov.uk/publications/planningandbuilding/tposguideaddendum  This information was posted on 2/10/2008 and updates DCP at (29) and (4.381).

Damages bid fails in EA case: In the first case of its type, the CPRE has failed to secure damages from the Attorney General in respect of its failed bids to prevent a large commercial development at the White City, London. The scheme had been granted permission and reserved matters approval. The development had been challenged in the High Court and Court of Appeal in 1999 and 2000, but both attempts were dismissed. The CPRE nonetheless argued that the court rulings contained errors of law and were inconsistent with rulings of the European Court of Justice.  It was held that the courts had erred in law in rejecting CPRE’s argument that Hammersmith London Borough Council could not approve the reserved matters without first considering whether an environmental assessment was required. However, neither ruling was inconsistent with community law as it was interpreted at the time. Only later was it made clear that environmental assessments may in principle be carried out at each stage in the planning procedure, including the reserved matters stage. The courts had made no manifest errors and there was no liability on the part of the Attorney General Cooper v HM Attorney General 30/9/2008. This information was posted on 1/10/2008 and updates DCP at (5.153).

Council’s costs secured by charging order: The High Court has ruled that a local authority’s unpaid legal costs in respect of a case where enforcement action had been taken against a cat building in a garden were to be secured by a ‘charging order’. This means that the authority could enforce the sale of the house to secure its money. The original case Catt v SOS 18/10/2007 had resulted in an inspector’s decision to being upheld.  The cat breeder had argued that the charging order was disproportionate as the debt only amounted to about 5% of the equity in his £750,000 house, and had proposed paying the bill by instalments. The judge ruled that this proposal did not give the council effective protection and granted the charging order Catt v London Borough of Barnet 30/9/2008. This information was posted on 1/10/2008 and updates DCP at (23.13).

GPDO changes now operative: Radical amendments to Part 1 of the GPDO come into force in England today. The main aspect of the changes is the abolition of the previous cumulative volumetric tests to establish whether householder proposals are ‘permitted development’,  in favour of a system relying on linear dimensions and plot coverage. NB. DCP will be completely revised by the end of the year to take account of the new proposals. This information was posted on 1/10/2008 and updates DCP at (23.13).

Planning applications decrease: Statistics released for planning applications in England show that in the June quarter of 2008 13% fewer applications were received by district planning authorities compared with the same quarter in 2007. The largest decrease, 20%, occurred in the NE of England.  The statistics also show a 7% reduction in the number of applications determined . The document may be viewed at http://www.communities.gov.uk/documents/corporate/pdf/977068.pdf  This information was posted on 30/9/2008 and updates DCP at (3.41).

Reforms urged for control of HMOs: A report to the government on Multiple Occupation includes amongst many recommendations that planning restraint policies be tightened up and the Use Classes Order be amended. The document may be viewed at http://www.communities.gov.uk/documents/planningandbuilding/pdf/evidencegatheringresearch.pdf  This information was posted on 30/9/2008 and updates DCP at (11.2).

Housing permissions not being hoarded: The Office of Fair Trading has found that house builders have not been engaged in land-banking to the detriment of competition. In a report it has stated that there was little evidence to suggest that developers had deliberately mothballed land with planning permission to artificially raise prices, or that they had systematically obtained market power at a local level by acquiring planning permissions.  The document may be downloaded from http://www.oft.gov.uk/shared_oft/reports/comp_policy/oft1020.pdf  This information was posted on 26/9/2008 and updates DCP at (7.12).

Religious use in industrial building rejected: The High Court has upheld an inspector’s decision that a ‘miracle centre’ located in a former industrial unit in north London was in breach of an enforcement notice and should not remain (DCS No. 100-056-346). The inspector had found that, although the religious use provided a useful community service, inadequate marketing had been carried out to ascertain whether there was any demand for a conventional employment use in the premises.  It had been argued to the court that the appeal decision had failed to give adequate reasons. However, it was ruled that the inspector had properly balanced the social contribution made by the centre against the need to comply with local planning policies requiring job-generating industrial uses in this location Miracle Centre Assemblies of Good v SOS 23/9/2008. This information was posted on 24/9/2008 and updates DCP at (26.15).

Bandstand can proceed: A court injunction which had prevented a local authority from constructing a bandstand at the Esplanade in Watchet, West Somerset has been lifted. It had been argued that the bandstand was not permitted development but the High Court accepted that it was within the council’s power to construct ‘small ancillary buildings’ of this type Case of Richards v West Somerset Council 23/9/2008. This information was posted on 24/9/2008 and updates DCP at (4.3427).

Firm had not been singled out for enforcement action: The Scottish Public Services Ombudsman has found that in taking enforcement action against premises used for retail purposes on an industrial estate, a council did not act unfairly when compared with the treatment of other businesses carrying on similar activities. It was noted that throughout the process the council acknowledged their awareness that other businesses on the estate were engaged in unauthorised retail activity. The resourcing issues that prevented them from addressing all of these cases immediately had been explained.  In addition evidence had been produced of enforcement action taken against other businesses on the estate over the years. The Ombudsman felt that the facts demonstrated that the complainant was not singled out for enforcement action. This report may be downloaded from http://www.spso.org.uk/reports/report.php?id=958  Case 200502776 Renfrewshire Council. This information was posted on 22/9/2008 and updates DCP at (4.531).

Call for illustrated permitted development guide: The RPTI has called for a ‘Highway Code’ type booklet to be published which would explain the changes that can be made to a property without the need to gain planning permission. The Institute believes such an illustrated document should also explain the procedures for seeking planning permission where necessary, as well as giving good advice about doing neighbourly and environmentally friendly development when permitted to do so without the need to gain approval. An RTPI spokesman stated that there were too many minor applications washing across the desks of hard pressed local authority planners which did not need to be there. The quality of applications was also frequently poor, which made processing more difficult and time consuming. Where applications were not needed, members of the public often complained the development outcomes were not well designed. This information was posted on 22/9/2008 and updates DCP at (4.34) .

Rural eco-community approved: Pembrokeshire Coast National Park Authority has approved a scheme consisting of 5 eco-roundhouses constructed of straw bales, locally-sourced timber, recycled glass and wall plastering using clay and manure. Power will be generated on-site and water collected locally. The development is located on the site of a former derelict farm near Newport. The permission is for a three year limited period and follows a ten year planning battle related to the original unauthorised roundhouse building. The development is now considered to fall within low-impact sustainable development policies. This information was posted on 18/9/2008 and updates DCP at (9.2381) and (27.7).

Brecon Beacons chief suspended: The Chief Executive of Brecon Beacons National Park has been suspended while continuing investigations are underway into alleged irregularities concerning the handling of planning applications. The Director of Countryside with the authority has been appointed acting chief executive, This information was posted on 18/9/2008 and updates DCP at (5.1).

Applications and fees downturn in Scotland: Planning Resource reports that a survey in Scotland has revealed that the number of applications being received has fallen substantially, including those for large residential developments. This has, in turn, resulted in a substantial fall in fee income, in some areas estimated to be as much as 30%.  This information was posted on 16/9/2008 and updates DCP at (3.4) and (5.152).

BPF call for planning reforms: Further to a draft released in May 2008, the British Property Federation has formally issued a ‘planning manifesto’ which urges overstretched councils to outsource work to private consultants in a bid to speed up the planning process. The body recommends that developers should be encouraged to contribute resources to help local authorities deal with planning applications. It also calls for councillors to receive formal planning training, and recommends that smaller applications like loft-extensions are dealt with by unqualified staff, leaving planners free to work on larger schemes. Other development control reforms called for include improvements to the recruitment and retention of planners, the reduction of information required to support planning applications, the speeding up of contributions from statutory consultees, and a requirement that planning appeals concentrate on the reasons for refusal. This information was posted on 16/9/2008 and updates DCP at (3.4).

Works to listed mansion lambasted by judge: A businessman who carried out extensive unauthorised works to part of a Grade II listed mansion in Monmouthshire has been fined £40,000 with £17,000 costs. The relatively small size of the fine reflected the high cost of the remedial works, which were ordered to be carried out within six months. The cost of these is estimated to be the area of £450,000. The judge commented that ‘Your treatment of one of the loveliest old houses in Monmouthshire has been described as if it were a property featured in Footballer’s Wives – having seen what you did the comparison is not inept”. He added “Features intended to improve the property have been added without consideration and sympathy- like painting a moustache on an old master or adding a drum and bass track to music written by Mozart.2 Over a period of time you proceeded to treat planning regulations with contempt and as if they did not exist”. The matter first came to court in July 2007.  This information was posted on 12/9/2008 and updates DCP at (27.253 ).

GPDO householder reforms introduced:  The householder reforms to the GPDO in England have now been laid before Parliament and come into effect on 1st October. The Government states that its effect will be that the number of householder planning applications will be reduced by one quarter (about 80,000), and it presents the changes as ‘the scrapping of red tape’. However, additional controls are to be introduced to covering non-permeable parking areas and driveways of over 5sqm.and World Heritage Sites are to be included in the definition  of Article 1(5) land where special controls apply.
The amendments to Part 1 of Schedule 2 the Order retain the same basic structure as the existing Order. Class A relating to the enlargement, improvement or other alteration to a dwellinghouse is to be completely revised. The existing complex rules based on volumetric ceilings are to be scrapped in favour of linear measurements. An overall condition is that any permitted development under this class not exceed 50% of the area of the curtilage excluding the footprint of the ‘original dwellinghouse’. Class B relating to roof additions or alterations retains volumetric ceilings but the previous link to Class A permitted development is severed. The Amendment Order may be downloaded from http://www.opsi.gov.uk/si/si2008/uksi_20082362_en_1 and an interactive layman’s guide may be viewed at www.planningportal.gov.uk/uploads//hhg/houseguide.html  Guidance on the permeable surfacing of front gardens has been issued by DCLG and the Environment Agency and may be downloaded from http://www.communities.gov.uk/publications/planningandbuilding/pavingfrontgardens  This information was posted on 11/9/2008 and updates DCP throughout Chapter 12 and at (4.34).

Humanitarian considerations supported in Gypsy case: The Court of Appeal has supported an inspector’s decision to grant permission for a Gypsy site on compassionate  grounds (DCS No. 100-041-939). The local authority had challenged the ruling on the basis that the appellants had not shown that there were no alternative sites where the needs of a severely disabled child could be provided for. The court felt that this was a truly exceptional case and noted that the inspector had found that there was a substantial shortfall in authorised sites in the area. Living in a house was not an appropriate alternative option for the family who wished to maintain their Gypsy lifestyle South Cambridgeshire DC v SOS 5/9/2008. This information was posted on 10/9/2008 and updates DCP at (24.535) and (4.175).

Green belt crematorium rejected: The SOS has rejected proposals for a crematorium in a green belt area in Cheshire (DCS No.100-057-753). The proposal involved the erection of a main building with a 9.5m chimney and two smaller buildings in the grounds, together with parking for 89 cars. It was concluded that the proposal was inappropriate and would cause harm by reducing openness and causing encroachment in the countryside. Although there would be qualitative benefits from the scheme these were not outweighing. This information was posted on 10/9/2008 and updates DCP at (26.135).

Waste plant restrictions to be challenged: The High Court has ruled that a challenge can proceed to the restrictions applied by an inspector when upholding an enforcement notice relating to the intensification of a waste processing plant (DCS No. 100-055-838). The site was in a green belt area to the north of London. The inspector had found that the use enforced against, the intensification of a waste paper processing plant to include green and other  recyclable waste, was a material change of use of the site and applied stringent notice requirements relating to hours, vehicle movements and the types of waste that could be processed. The appellant company argued that the viability of the long-standing plant would be imperilled and the court agreed that there was an arguable case that the inspector had gone too far in imposing the restrictions that he had Case of Chas Storer Ltd v SOS 9/9/2008 This information was posted on 10/9/2008 and updates DCP at (25.45).

Design of Tesco store criticised: An inspector has rejected a proposal for a 2,750sqm Tesco store in Sheringham, Norfolk. Although it was concluded that the proposal would bring economic benefits to the town centre and it fulfilled a need, an inspector felt that in this location the attractiveness and quality of this tourist and market town would be irrevocably diminished. The building was poorly designed and was a formulaic composition that had little to distinguish or commend it. In addition the proposal had ineffectual functional linkages to the wider town centre.  These were compelling objections. This information was posted on 10/9/2008 and updates DCP at (13.1373).

SOS not inconsistent in application of affordable housing mix policy: The High Court has upheld the decision of the SOS to allow a 152 unit housing development on 3.5ha of playing field land  at Filton, near Bristol (DCS No. 100-049-917).  The local authority has sought to overturn the decision because the SOS had allowed a far lower proportion of the affordable housing to be provided as long-term social rented housing than its policy required 77%.  The local authority argued that this was inconsistent with an appeal decision made in respect of a larger housing scheme at a nearby site. The court felt that the latter case was distinguishable, in that it was a large strategic site. The reasons why the SOS allowed one development and refused the other were obvious South Gloucestershire Council v SOS 2/9/2008. This information was posted on 03/09/2008 and updates DCP at (7.336)

Inspectorate annual statistical report issued: The Planning Inspectorate  issued its annual statistical report for 2007-2008 last month. English figures show a marginal increase in the overall number of appeal received of which 35% were allowed as against 34% the previous year. However, 54% of Inquiry cases were allowed. The percentage of appeals determined by written representations held steady at 80%, while hearings increased by 1% to 14% of the total. The document, which also includes performance statistics, may be downloaded from http://www.planning-inspectorate.gov.uk/pins/reports/stats_2008/full_england_report.pdf  This information was posted on 2/9/2008 and updates DCP at (3.151).

Annual DC statistics published: The SOS has issued development control statistics for the year 2007/2008. The figures show a slight increase in the number of planning applications received and decided, and of the latter 82% were allowed.  Enforcement notice service increased by 1% although the number of contravention notices was the lowest since 2004-2005. The statistics may be downloaded from http://www.communities.gov.uk/publications/corporate/statistics/developmentcontrol200708  This information was posted on 1/9/2008 and updates DCP at (3.41).