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The DCP Blog aims to provoke debate and stimulate thought on current issues as well as highlighting procedural and policy matters relevant in everyday planning practice.

Here you will find items relating both to minor points of information and to significant trends which are not ordinarily the focus of individual planning decisions. The DCP Blog will inform and entertain the reader.

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Out of office on

Rules is rules and so it does not pay planning authorities to wait until the last minute to issue decision notices on permitted development prior approval notification applications. Councils have stumbled into this pitfall before and probably will again.

The first ‘rule’ in question is the GPDO provision that a planning authority has a 56-day timeframe within which to notify an applicant of its decision on whether prior approval is granted or refused. The second ‘rule’ comes into play regarding the method of delivery of that decision. Article 2(9) of the GPDO is unequivocal ‘that where a decision is being issued electronically, if it is received by the recipient outside the recipient’s business hours, it is taken to have been received on the next working day’.

Applying these rules, an inspector held that a Class Q prior approval application concerning conversion of a Lincolnshire barn to a dwelling was deemed to have been granted by virtue of paragraph W(11) of the GPDO, in appeal decision 400-043-870. The council accepted that the electronic version of a decision notice to refuse had been sent outside of the normal business hours of the appellant’s agent on day 56. Consequently, the inspector held that the decision received the next working day had not been received within the prescribed timescale and therefore, irrespective of dispute between the parties as to whether the development fell within the scope of Class Q and over matters related to protected species, it was permitted development.

The inspector also concluded that the decision of the council to defend the appeal amounted to unreasonable behaviour which had put the appellant to unnecessary expense and made an award of costs against the council.

In a fair postscript, the inspector warned the appellant that if did they did not comply with other ‘rules’ concerning the conditions and limitations of the permitted development right and compliance with the submitted plans, then they would be at risk of enforcement action.

Class Q permitted development rights and procedures are explained fully in DCP 10.114.

Containing the self-build flood

In planning as in any sphere, there is always the latest ‘thing’, the new buzz word, the most up to date policy direction, etc, etc. It is not surprising then that these band-wagons are harnessed to help drive forward development proposals which might otherwise, under conventional policies, not stand much chance of success.

This scenario played out in 400-043-867 where it transpired the appeal inspector was wise to the ruse. In her assessment, the proposal to build a house on orchard land on the edge of a small hamlet amounted to an unsustainable development that was contrary to local plan policies which generally combined to prevent a new dwelling in a small settlement with effectively no services and rural lane communications.

In addition to a lack of a five-year housing supply, the appellant made considerable play of the fact that what was proposed was a self-build dwelling, attracting considerable support from local and national policy, advice and guidance. Provision for EV charging was thrown in for good measure.

The inspector, however, was quite clear that being a self-build did not overrule sustainability requirements, raising the spectre that “the figurative flood gates to unsustainable development would be opened“ if this were to be the case. She added that EV charging points should also not be seen as a lever for allowing dwellings which would otherwise conflict with settlement strategy and hierarchy. Again, rather like the self-build argument, she considered the flood gates to unsuitably located new housing development could be opened.

You can’t blame people for trying though.

DCP 9.9 considers self and custom build dwellings in more detail.

 

Boat or floating building?

This conundrum faced an inspector tasked with determining an appeal against enforcement action in West Sussex. The council described an alleged breach of planning control as “the construction of two floating pod-style dwelling houses”, most likely after some head-scratching, whereas the appellant maintained that they were boats.

The ‘units’ had been designed and made in a marina boatyard from two rows of foam-filled concrete blocks held together by a metal framework covered by wooden decking, on top of which was attached a pre-assembled pod containing a shower room, kitchenette and living/bedroom area.  With an outboard motor attached to the rear and steering and other controls at the front, the units had actually been certified for navigation….

Invoking the ‘Not everything that floats is a boat’ from Sussex Investments Ltd v SSE & Spelthorne BC [1997], the inspector scrutinised the evidence to try and decide whether or not the units were buildings, having regard to the three primary factors of size, physical attachment and permanence identified in case law in Cardiff Rating Authority (endorsed by Skerritts).

In terms of permanence, the inspector was inclined towards the units being buildings. Whilst they had on occasion moved under their own propulsion during the four and a half years they had been in the water, the inspector found it significant that they had always returned to the same mooring.  Also, being advertised as tourist accommodation demonstrated that the units were available and with that came permanence, the inspector reasoned.

However, turning to the features of size and physical attachment, he concluded that the units were not buildings. In contrast to a building, the units had been designed by a boat specialist, completed in the boatyard beside the marina and then lifted into the water in the same way as a boat. This would not bring them within the definition of building operations as defined by the Act. Quick release service couplings and rope attachments to the pontoon were similar to a boat.

On the balance of probabilities, the inspector decided that the units were not buildings and quashed the enforcement notice (400-043-924). He did, however, throw the council a lifeline by pointing out that it remained open to the council to investigate whether the units amounted to a material change of use of land, whilst reminding everyone that for planning purposes water is considered to be ‘land’.

Whether a water based structure amounts to a building operation has been considered in other cases examined in DCP 4.3113.

Shark!!

Art often divides opinion and none more so than art in the public realm. Public art can prove particularly contentious, it seems, when it involves life-sized model sharks turning up in unexpected places to the surprise of passers-by. Curiously, there have now been two high-profile cases involving the installation of replica sharks in unlikely settings which proved to be a challenge for development management.

The first case is the well-known 1986 ‘shark sticking out of the roof’ of a terraced house in Headington, Oxford. The second and much more recent case (400-044-103) is found in Hackney, where five model sharks have been allowed to be moored in a freshwater canal basin. Both unnatural habitats for a shark there is no disputing.

The Hackney sharks have been awarded a temporary nine-month permission by a planning inspector after the council failed to determine an application that followed a long-running dispute, including an injunction against their display upheld by the High Court in 2020. The council confirmed it would have refused permission due to the effect on the canal conservation area and listed bridge.   

Adjudicating on the proposal, the inspector was keen to dispel the appellant’s suggestion that the council’s actions were an attack on art, pointing out that the proposal raised important questions about the sharks’ effects on the historic environment rather than the artistic merits of the sharks (readers may form their own opinion on artistic merits).

In the inspector’s judgement, as the sharks would be viewed against a backdrop of utilitarian buildings rather than the listed bridge, they would not compete with the bridge or harm its setting, and have only limited localised effect on the extensive canal conservation area. Overall, the designated heritage assets would not be harmed. He also took into account an existing planning permission for the display of art installations (without restriction on size and form) in the canal basin, granted by an inspector in a separate earlier enforcement inquiry appeal decision. Acknowledging the drama of the art installation, the inspector went on to allow the appeal. He did, however, impose a condition limiting the times when a lecture “on important themes in contemporary architecture and urbanism” by each shark would be played. Now that’s scary!

DCP 17.436 Public art and statues, offers further insight into this subject and includes a previous Hackney appeal case cited by the council in aid of their case against the sharks. This dismissed appeal (400-017-657) concerned the siting of shipping containers on the canal-side, painted with artwork. The ‘sharks’ inspector observed, however, that this case seemed quite different, inasmuch as the shipping containers were larger than the sharks and planning permission had already been granted for the display of art installations in the canal.

Sign of the times

For the second time in not many more months an appeal decision concerning a foodbank has come to our attention. Surely a sign of the times. Of course there have been previous cases but nothing notable for the best part of a decade.

In both of these recent cases, it was the temporary and out of keeping appearance of the building providing the foodbank premises that proved a major downfall. This is not so surprising when considering the urgency and limited budget with which these valuable community facilities are often set up.

It must be an unenviable task for any council or planning inspector to have to weigh up the public benefit of a community foodbank in the context of an acknowledged cost of living crisis against other considerations, but this is precisely what is required of the decision-maker.

In the latest appeal (400-043-996), an inspector judged the poor appearance of a portable cabin installed on a car parking area to the rear of a locally listed building detracted from its setting and interest but the significant public benefit of the food bank relied upon by members of the local community outweighed the harm to the non-designated heritage asset. However, this benefit was held insufficient to justify harm to the wider conservation area, a designated heritage asset, and the appeal was dismissed.

National policy and guidance on assessing the potential impacts of development on the historic environment and undertaking the heritage balance in decision-making is summarised in DCP 4.3711.

 

Seeing the wood for the trees

That ancient woodland is an irreplaceable habitat to be defended from loss or deterioration through development is made abundantly clear in the NPPF and standing advice from Natural England and the Forestry Commission.

What is not always transparent, however, is whether woodland qualifies as ancient or not in the first place. The official NPPF glossary definition is given as “An area that has been wooded continuously since at least 1600 AD” but there is no definitive designation or complete mapping of ancient woodland. The fact that woodland is not included on the Provisional Inventory of Ancient Woodland maps or Defra GIS mapping does not preclude it from being ancient woodland.

So, working out whether woodland is ancient or not can be a challenge and even the experts may not always get it right. This was the conclusion of an inspector (400-043-864) after studying the evidence in relation to a proposal to retain a forestry building erected in an area of cleared woodland lying between two known ancient woodland areas.

The council, on the advice of the Forestry Commission, considered the appeal site to be ancient woodland. The Forestry Commission had identified large numbers of ancient woodland species such as English Bluebells and a similar soil profile to the nearby ancient woodlands. The inspector, however, decided the absence of woodland on the site on historic ordnance survey maps used to undertake a local inventory was more significant and chimed with the official definition.  In his opinion, younger woodlands were capable of containing the species and characteristics identified by the Forestry Commission.

More information on this topic can be found in DCP 4.2554 Ancient Woodland.

EV-charging condition overtaken by building regulations

In determining an appeal seeking the removal of a condition requiring provision of EV-charging at a new-build bungalow, an inspector agreed with the appellant that the condition should not have been imposed on the reserved matters approval in the first place and furthermore, amended Building Regulations now covered the requirement to install EV-charging facilities.

Observing that council policy encouragement for EV use was aimed at improving air quality and tackling renewable and low carbon energy, the inspector was in no doubt that the condition did not directly relate to any of the five reserved matters of access, appearance, landscaping, layout or scale, and should not have been imposed except at outline stage, if necessary (400-043-706).

The inspector went on to find that council design guidance setting out British Standards for charging infrastructure and that residential charging points should be a minimum of 7kW, had been overtaken by amended Building Regulations Document S “Infrastructure for the charging of electric vehicles” (February 2022) which came into effect in June 2022 to deal specifically with the provision of EV-charging facilities for residential development. She decided the condition duplicated these Building Regulations and contravened the long-held principle that local planning authorities should not duplicate the function of other regulatory bodies or controls.

Other examples of unacceptable planning conditions are examined in DCP 4.4118.

Who let the dogs out?

It is interesting and encouraging when new business concepts emerge in response to change and new challenges in our daily lives. Economic forces at work to meet a demand. The well-documented rise in dog-ownership during Covid lockdown was closely followed by a boom in dog-walking companies as people returned to work and now a trend has emerged for the provision of bespoke dog-exercise paddocks, judging by the growing number of appeal decisions.

The concept is a simple one. Take an area of green open land, usually in the countryside or settlement fringe, provide somewhere to park, fencing and dog-poo bins, maybe some seats, possibly a shelter or dog-agility jumps, and away you go… subject to planning permission of course.

In this respect it pays to think through the proposal thoroughly. Avoiding sensitive landscapes and being aware that parking, paraphernalia and activity are not conducive to green belt openness may increase the chances of success. There are many examples available of failed appeals relating to dog-exercise paddocks in such locations.

Practicalities such as secure fencing should also not be over-looked. An inspector wise in the ways of man’s best friend turned down a proposal (400-043-695) to change the use of an agricultural field to a private dog walking leisure and recreational facility in the Kent countryside. While the council appeared content with the appellant’s statement that the boundary treatment around the field would be unaltered, the inspector observed that the existing boundary fences were not high enough to contain frightened or poorly behaved dogs. The inspector identified a requirement for significantly higher fences to safeguard the dogs, which would be out of keeping with the scenic beauty of a national landscape and difficult to resist if the change of use were permitted.

On this basis and the loss of rural character to commercial activity, the inspector determined that the proposal would not conserve the special qualities of this part of the Kent downs national landscape and should be dismissed, although it was found not to be an inappropriate development in the green belt.

Refer to DCP 23.1 for more on planning matters relating to the care of domestic pets.

NDHA – says who?

National PPG is unequivocal that non-designated heritage assets may be identified during decision-making on an application for planning permission. This much is understood and many heritage assets have been identified in this way, albeit with different outcomes for the future of the asset depending on the material considerations at play in any particular balanced decision.

With the potential to stymie a valuable development, the heritage significance and merits of a NDHA identification will often be hotly debated between planning authority and applicant. But in appeal case 200-012-365, the appellant, an established retirement home provider, went further and challenged whether a planning officer acting under delegated powers had the legal authority to accord NDHA status to a Victorian villa proposed for demolition, in making a decision to refuse permission.

During consideration of the application to redevelop the site with retirement flats, the villa was nominated for inclusion on a draft local heritage list by an archaeology advisory service, and formally included the day after permission was refused. The appellant argued that this did not amount to formal identification by the council, and that the unilateral declaration of NDHA status by the officer circumvented due process including consultation in the council’s preparation of a local heritage list as a supplementary planning document.

 The council maintained the general provisions of its scheme of delegation authorised the officer, although the inspector noted the specific heritage section was silent on the matter and in his view the scheme was not unambiguous as to whether the designation of non-designated heritage assets rested with the committee or the planning officer.

With the lawfulness of the identification of the villa as a NDHA unresolved, the inspector declared there was no foundation for considering the heritage significance of the building. In the event, he dismissed the appeal on other issues. It is noteworthy that this scenario could be repeated in other local authority areas without a scheme of delegation specifying where legal authority to identify NDHAs lies.

Delegated powers are discussed generally at DCP 5.211, local listing at DCP 4.3721, and loss of attractive and locally listed buildings at DCP 4.1434.

 

Pizza bot

Here at the blog we do enjoy a novelty and so our attention was naturally caught by a proposal for an “automated robotic pizza vending machine” no less! We had to find out more.

It turned out that the machine had already been installed and the inspector was able to experience it first-hand. He described it as having a white painted, utilitarian, shipping-container appearance, incongruous in the street scene and the setting of buildings of local interest. Disappointingly though, there is no mention  of whether he tried out the full experience of buying a pizza from the machine.  

Located not quite where you might expect, the vending machine had been positioned on the forecourt of a modern office block with no pizza restaurant in sight. A quick bit of research revealed such vending machines contain a convection oven to cook your selected chilled pizza inside its box, a robotic arm picking it from a rack and then delivering it through a slot when cooked. Unsurprisingly pizza vending machines are already common-place across the pond and a few have already arrived in this country. Not sure they will catch on in Italy, the home of pizza, though.

The 24-hour vending machine was sited in a relatively busy seafront area with various  commercial premises in the locality and passing vehicles on the main coast road. However, given the number of residential properties in the surrounding area, the inspector’s concern focused on the effect on living conditions. Judging that the area would fall quieter at night, he considered that customers waiting for their pizzas could result in significant noise disturbance at unsocial hours. 

The appellant, a small, independent start-up company, sought a temporary one-year  permission to allow the innovative project to be tested but the inspector rejected this suggestion. In his view, whilst the expansion of the fledgling company would support  employment, the vitality of the town and contribute to its night-time and visitor economy,  the benefits were too small-scale to outweigh the identified harm (400-043-405).  

More discussion of pavement shops and retail pods can be found in DCP 13.333, and the effect on residential amenity of noise and disturbance associated with takeaways is an issue considered in DCP 16.234.

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