DCP Blogs

A dip in standards

As with almost everything, there are varying degrees of quality for something that essentially does the same ‘job’. Outside of consumerism and inside the world of planning, this too is true of design, architecture, materials, buildings, public realm, landscaping, the list goes on….and it is fair to say that planning and property professionals aim to drive up standards.

No wonder then that an inspector rejected an appeal to retain a DIY disaster of a community building in Hackney (400-043-201). With the best of intentions the appellant had created an indoor play area and mikvah (ritual immersion pool) for the residents of the square, by reconstructing the fire-damaged remains of a former light industrial building. It was not in dispute that there was a demand for the mikvah from the local Jewish community, and that local children, some of whom live in cramped conditions, would benefit from the playroom.

However, the inspector observed the building works were extremely poor quality with blockwork walls and no heating or insulation, and the mikvah, a rainwater pool used for ritual cleansing, had been created from a former inspection chamber no less! Not the obvious environment for a spiritual experience, it must be said. Furthermore, he found the building unsafe, noting a 13 amp wall mounted double socket in the mikvah room, roof timbers that would not support snow loadings, and external doors that opened in and not in the direction of travel in the event of a fire incident. Dull brown external render had been inexpertly applied to the outside and, not to beat about the bush, the inspector described the building as ugly.

Dismissing the appeal, the inspector urged the appellant to seek professional assistance to secure the provision of a building that would be acceptable in planning terms, that would satisfy the Building Regulations, and that would ensure the health and safety of the residents who would use it. Amen to that.

See DCP 26.131 for more cases concerning religious buildings in urban areas.

Duty bound

The appeal concerned approval of details of a manure management plan at a horse livery and training stables, required by a condition of a sec.73 permission sanctioning an increase in the number of horses stabled at the site. The council refused to approve the details of the proposed manure storage area, because it fell outside the red line boundary defining the limit of operational development on the sec.73 application site location plan. On this basis, the inspector agreed the planning merits of the case could not be considered and dismissed the sec.78 appeal (400-042-668).

However, in an application for costs, the appellant asserted that the correct plans should have been available to view on the online planning register, and claimed the council had acted unreasonably in failing to maintain the planning register as required by the DMPO.

The inspector agreed that if the council had kept its online planning register properly up to date, counsel opinion provided to the applicants would have identified that the manure storage area would be located beyond the site and beyond the jurisdiction of the permission itself, holding that it was likely that the appeal could have been avoided altogether.

The legal requirements of a local planning authority to maintain and make publicity available a register of planning applications including plans and drawings, are explored in detail DCP 5.1511.

Off the starting blocks

The key difference between information desirable for determining an application and information that is required, was highlighted in an appeal against non-determination following a validation dispute (400-042-817). A retrospective application for a replacement shopfront in a locally listed building had been made but the council refused to validate the application, stating that the application was incomplete without pre-existing front elevation drawing and photograph, and pre-existing and existing floorplans.

Notwithstanding that the application was for planning permission for development already carried out and therefore excluded from the council’s local list of information requirements anyway, the council had not provided any justification of its request by reference to the local list. Although the appellant served a notice under article 12 of the DMPO, stating that the council’s requirements were not reasonable or proportionate or reflective of the development being applied for, the council didn’t respond, despite being required to do so by article 12. To make progress, the applicant had no alternative but to appeal non-determination.

In defending an application for costs by the appellant, the council conceded that it had not been in a position to refuse to validate the application, but maintained that the details requested would have been desirable to help it determine the application. The inspector was having none of this, pointing out that the council’s appeal statement demonstrated that it had been able to assess the planning merits of the case even without the requested details, and this was no reason to have refused to validate the application. He allowed the sec.78 appeal after finding no harm to the shopfront and wider area, and made an award of costs. In his view, if the council had given proper regard to, and understood, the provisions of the DMPO, there was a strong probability that the application would have been validated.

The subject of application registration and validation disputes are explored in DCP 5.151. Local list information requirements are examined in more detail in DCP 5.144.

Intimate association

An inspector tasked with deciding an appeal against refusal of an application for a LDC, seeking to establish that the proposed erection of a workshop, a potting shed and construction of swimming pool was permitted by GPDO Part 1, Class E, including by virtue of being sited within residential curtilage (400-042-968), not unsurprisingly turned to case law.

By way of background, the owner of the semi-detached former farm-worker’s cottage had purchased parcels of adjacent farmland to enlarge the property’s modest original curtilage, in 1996 and 2005, using the additional land as garden. To make a judgement on whether the land where the outbuildings and pool were proposed to be sited could be defined as residential curtilage, the inspector considered relevant case law on the meaning of curtilage.

The most recent judgment on the matter of curtilage was made by the court of appeal in Hampshire CC & the Open Spaces Society & Others v SSEFRA & Blackbushe Airport Ltd [2021]. After reviewing a number of earlier judgments, including Dyer, Calderdale, Skerritts and Challenge Fencing, the judge in Blackbushe concluded that there is only one true test, which is the test of ‘intimate association’ leading to a conclusion the land forms part and parcel of the building, as set out in Methuen-Campbell v Walters [1979]. The Blackbushe judgment also held that curtilage in any given case is a question of fact and degree, and a matter for the decision-maker.

The inspector applied the test reiterated in Blackbushe from Methuen-Campbell, to decide that in the appeal case the land in question was not so intimately associated with the cottage that it formed part and parcel of the building, and it was therefore not curtilage. Whilst in terms of physical layout, ownership, and use, there was a degree of connection between the land and the cottage, the inspector identified a spatial and visual separation of the location of the proposed outbuildings and swimming pool from the cottage.  This separation disconnected them and reduced the degree of association to a level that was not intimate. The inspector concluded the council's refusal to grant a certificate of lawful use or development was well-founded and the appeal failed.

For more on defining residential curtilage, see DCP 4.3444 and 12.912.

Hard line on flood risk sequential test

The appellant proposed to erect a house on a site within flood zone one, at low risk from river and sea flooding, but Environment Agency mapping showed that the site was subject to surface water flooding equating to a low-to-medium level of risk. However, on the basis of finished floor levels and a surface water drainage system secured by condition, the LLFA did not object to the scheme (400-042-678).

Unfortunately for the appellant, the inspector noted that the Wathen-Fayed judgment related to a previous version of PPG that had been superseded by an amended version making clear the sequential test is the most effective way of addressing flood risk by placing the least reliance on property-level resilience features, and the judgment therefore had limited relevance. Revised PPG sought pragmatism but only in respect of minor development such as small extensions and not new houses.

The inspector concluded that the NPPF flood risk policy sequential test should be applied to the proposal and as no assessment of potential alternative sites had been demonstrated by the appellant, the test had not been satisfied and the appeal was dismissed.

Ministerial flood risk planning guidance and the application of the sequential test in practice is explored in DCP 4.1652.

Sound as a barn

In the case in question (400-042-831) it was the council’s contention that the building operations would not comprise a conversion, citing the judgment in Hibbitt and another v SSCLG and Rushcliffe BC [2016], and therefore the proposal could not be permitted development under Class Q. The council raised a specific concern over the structural stability of the existing building in its reasons for refusal.

The inspector, however, found it “incredibly difficult to understand” why the council considered that a structural survey was required. His observations were that the modern agricultural building with a steel frame and metal cladding showed no obvious signs of any structural weakness or damage.

This was borne out by a visual structural survey and assessment submitted by the appellant with the appeal. The survey reported no signs of any misalignment, deformation or deflection of the structural framing and cladding, and concluded that only minor works were required to convert the building. Despite this, the council criticised the survey for not including a trial pit inspection.

By this time the inspector’s exasperation was showing. His firm statement was that the existing building did not exhibit any characteristics which necessitated a structural survey, let alone a more intrusive trial pit inspection. An air of tetchiness can be detected, we think.

In an accompanying decision on costs, the inspector continued to speak plainly. He set out that a blanket approach requiring structural surveys for all Class Q development is not appropriate, and where there are no particular reasons to doubt the structural stability of the existing building it is unreasonable to request a structural survey. The council had acted unreasonably, in his opinion, and had also failed to justify or substantiate its reason for refusal. An award of costs was made.

Class Q permitted development rights and the implications of Hibbitt are set out in further detail in DCP 4.3423, while practice matters in relation to rural housing including dwellings formed from barn conversions are considered in DCP 9.314.

Social media weaponizes enforcement

Social media has become such an accepted part of our lives that it is easy to forget the potential ramifications. Social media users are justifiably warned to be wary of what they put out into the public domain. Even seemingly innocuous posts may well come back to bite you!

An appellant appealing against an enforcement notice found the truth of this out the hard way. The notice alleged the change of use of the land from agriculture to a mixed use of open-air storage and residential use, involving siting of a caravan for residential use, without planning permission.

The appellant’s statutory declaration was that a caravan had been on the site and continuously occupied for residential purposes for more than ten years, from 2012. The submitted google earth images in this instance were very poor quality and didn’t go back far enough to support his claim. In addition, the council produced publicly available social media evidence which, in the inspector’s judgement, indicated that the appellant was living elsewhere in 2014. As the appellant was unable to corroborate his alternative version of events, the inspector could not conclude other than that his evidence was not sufficiently precise in terms of continuous residential occupation of the land for ten or more years (400-042-787) and the appeal was dismissed.

This planning enforcement case bears no comparison to the growing number of high profile legal cases, for example involving footballers wives, which have centred on social media evidence, but what is clear is that social media is something to be aware of whether you are the investigator or the investigated.

Futher case examples concerning evidence in establishing immunity from enforcement can be found in DCP 4.535.

No compromise in car crack-down

It was on the strength of this policy, a key-worker with a requirement for quick and easy access to a car was denied permission to create a vehicle crossover and vehicle parking with an electric vehicle charging point in their front garden in Camden (400-041-760). An inspector held the proposal clearly signalled the intention of the appellant to prioritise travel using a private vehicle in an area with a high PTAL rating, contrary to the policy which made an exception for disabled people but not for key workers. The concern also was that future occupiers would be incentivised to rely on car travel if parking was available.

Even while acknowledging that an electric vehicle charging point would have positive implications for air quality, the inspector concluded the proposal still failed to meet the council’s aim of reducing car ownership per se. Harsh but fair.

The topic of sustainability policies in development management practice in general is considered in DCS 4.1114. The legislation relating to formation of accesses and crossovers is addressed in 4.3136 while practice matters concerning domestic garages and accesses are found in 12.1.

Jumping the gun

This was a clear deviation from the council’s adopted policy of imposing conditions limiting occupancy period to ensure that accommodation remains available for holiday use in countryside locations where permanent residential use would not be permitted. The council sought to justify its stance on the basis that similar occupancy conditions on tourism developments had subsequently been removed, either by the council or on appeal (400-042-512).

Quite rightly the inspector was having none of this speculation, determining the proposal for holiday accommodation on its own merits as applied for, and pointing out it would be for the council to determine any future application to remove said condition. He found no evidence that a condition limiting the occupation of the lodges to holiday accommodation would not accord with the relevant NPPF tests.

In the event, the inspector identified conflict with a policy criterion in respect of wildlife conservation, in the absence of sufficient information to be sure that protected bats would not be harmed by tree removal, and dismissed the appeal anyway.

Holiday lodges falling within the statutory definition of a caravan are discussed at 24.2 and self-catering holiday accommodation in permanent buildings at 9.5. Removal of holiday occupation conditions is discussed at 9.7.

Choose your words carefully

Even when we think we’ve got it right, this doesn’t always prove to be the case when subjected to high-level scrutiny, whether in a development plan examination, planning appeal or the law courts. Feel then for the discomfort of council enforcement officers when a planning inspector pointed out the ambiguity inherent in the wording of an alleged breach of planning control stating ‘the material change of use of the land for stationing of caravan for storage purposes’.

To the inspector’s mind, this allegation could be read in one of two ways. Either that the material change of use constituted the caravan being stored on the land (a use for storage that would normally fall within the B8 Use Class) or, that the material change of use constituted the caravan, which accommodates stored goods, being stationed on the land.

Although the council had intended the former, the inspector held the failure of the notice to tell the recipient with reasonable certainty what the breach of planning control was, meant that it did not meet the requirements of sections 173(2) in accordance with settled case law. Since injustice would be caused if the error were corrected, the inspector held the enforcement notice was invalid and should be quashed (400-042-168).

It’s always so obvious when its pointed out!

Circumstances in which the description of a breach alleged in an enforcement notice can be found inadequate or incorrect is explored further in 4.5331.