DCP Blogs

Accidents will happen

Or will they?

In determining an appeal against the refusal of planning permission for the conversion of a cartshed at a farm in Nottinghamshire to four holiday lets an inspector took a balanced view on the likelihood of an accident happening at the access (DCS Number 400-036-335).

The inspector acknowledged that while there were no records of accidents in the immediate vicinity of the site, the access provided limited visibility. The site was also close to a route which was fairly well-trafficked due to its proximity to the A60. The inspector considered that while improvements to the access were proposed, due to the limitations of what improvements could be provided, there would still be a detrimental effect on highway safety due to a substandard access. He concluded that the proposal would have an unacceptable effect on highway safety by way of the proposed access arrangements.

Nonetheless, the inspector noted that the cartshed was a curtilage listed structure as it was formerly associated with the grade II listed farmhouse. He observed that it was unused and that there were marked signs of disrepair, in particular to the roof and the external openings, as well as a partial collapse of one element. Despite this he found that it retained its overall pleasing appearance and historical significance as a traditional agricultural building that formed part of the grouping of buildings that made up the former farmstead. 

The inspector reasoned that the proposal would have the benefit of putting the building to a viable use consistent with its conservation and would enhance the significance of the heritage asset. It would achieve this by utilising the building for holiday accommodation use and so the asset could be sustained in the future. 

In the balancing exercise the inspector held that the likely harmful effect on highway safety attracted moderate weight because it was tempered by the improvements and the likely traffic generation. Set against this harm was that the proposal would bring a designated heritage asset back into use and in a manner which was consistent with its conservation. This attracted significant weight in favour of the proposal. Accordingly, he concluded that the harm that would arise as regards highway safety would be outweighed by bringing a designated heritage asset back into use.

Section 4.1515 of DCP Online concerns safeguarding of traffic safety at accesses.

A flawed approach

An inspector has granted a certificate of lawfulness for the use of an annexe to the rear of a semi-detached house in Dorset as an independent dwelling (DCS Number 400-036-160). In doing so, he awarded costs against the council because it had not used the correct test. 

The appropriate standard for testing the evidence, the inspector explained, is made on the balance of probabilities, that is to say whether something is more likely than not. He noted, however, that the council had mis-directed itself by applying a higher test of beyond all reasonable doubt. PPG guidance, he continued, sets out that an appellant’s own evidence does not need to be corroborated by independent evidence in order to be accepted. If the council has no evidence of its own, or from others, to contradict or otherwise make the appellant’s version of events less than probable, there is no good reason to dismiss the appeal, provided the appellant’s evidence alone is sufficiently precise and unambiguous. 

The inspector recorded that the evidence submitted in support of the LDC application and the subsequent appeal included signed statements from the tenants and the owner. They described the manner of occupation of the annexe building and its continuous duration for more than four years prior to the application. A signed and dated tenancy agreement was also submitted. Although the expiry date was wrong, the hand-written date of signature was not. Taken together, the inspector found that the evidence was precise and unambiguous overall in demonstrating a continuous use for more than four years. 

The inspector noted that the council report did not dispute that the annexe had been occupied as described by the appellant, and accepted the use was not incidental to the main house. Nor did the report dispute the length of time it had been so used. Instead, it relied on the fact that the appellant referred to the building as an “annexe”, that metered water and electricity services were taken from the main house, and that no council tax had been paid for the annexe. He determined, however, that none of these factors contradicted the appellant’s case. 

The inspector also recorded that the council report made clear that the overall judgement of the appellant’s case was that it had “not been demonstrated beyond all reasonable doubt”. He pointed out, however, that that is the standard of proof required for criminal cases and was the wrong test to apply. The relevant test, established by the court in Thrasyvoulou v SSE [1984], is the balance of probabilities – whether something is more likely than not. 

Awarding costs against the council, the inspector concluded that the failure to exercise sufficient care in making a decision on the application, and followed through into the appeal, based on a flawed approach in considering and weighing the submitted evidence, amounted to unreasonable behaviour which had resulted in unnecessary and wasted expense for the appellants in pursuing the appeal. 

Further information on appealing a refusal to issue an LDC can be found at section 4.3014 of DCP Online. 

Points for trying

An inspector has declined to grant a certificate of lawfulness for the use of a former restaurant in the west Midlands as a day nursery (both Class E uses), being unpersuaded by a novel and rather clever argument on behalf of the appellants (DCS Number 400-036-148).  

The 1995 permission carried the following condition:-

“Notwithstanding the provisions of the Town & Country Use Classes Order 1987, the premises shall only be used as a licensed restaurant and tearoom for the sale of food on the premises and for staff accommodation and not for any other purpose, including any other uses within Class A1, A2 and A3 of the above order”.

The appellants argued that the condition restricted the use of the site to a restaurant and tearoom along with staff accommodation. A breach was claimed to have occurred because the site had been operating as a restaurant only, not as a restaurant and tearoom, over a minimum period of 10 years prior to its closure. Accordingly, they considered that the condition was no longer applicable and that a change of use to a day nursery would be lawful because a restaurant and day nursery would both fall within Class E of Part A, Article 3 of Schedule 2 of the Use Classes Order.

The inspector ruled, however, having regard to the inclusion of the specific word ‘and’, that the condition did not require the operation of both the restaurant and the tearoom. The fact that the occupant of the land chose not to implement the tearoom use might, he reasoned, have been due to external factors. They were both permitted uses, within the same use class that was in place at the time, which could be operated independently from each other. Furthermore, he continued, there is no distinction, in planning terms, between the two uses and there was no evidence to show that the intention of the condition was to prevent partial implementation of the restaurant without the tearoom or vice versa. 

The inspector considered that the purpose of the condition was essentially to limit the development to that which had been sought and prevent a change in use to something that might not safeguard the amenity of the occupants of adjoining premises and provide satisfactory off-street parking. He found that the words ‘not for any other purpose’ in the condition made this clear. He concluded that the condition had no other sensible discernible purpose than to prevent some other use which might be permissible without planning permission rather than to require all of the uses applied for to be implemented. Accordingly, he determined that the use of the site had not been operating in breach of condition. The condition remained enforceable and precluded the proposed change of use. 

Points for trying, though!

Section 4.5352 of DCP Online concerns the 10-year rule and breach of conditions.

A matter of speculation

An inspector has granted a certificate of lawfulness for the change of use of a terrace property in south-east London from a C3 dwellinghouse to a C4 house in multiple occupation under Part 3 Class L of the GPDO (DCS Number 400-036-104). In doing so he issued a reminder that it is not for a council to refuse a certificate on the basis of fears about future use. 

The inspector noted that the application and accompanying plans unambiguously proposed a development which was within the C4 Class, and therefore it was a permitted change of use from C3 under the GPDO. The council, however, had refused the LDC application upon its view that the property would likely not be used as proposed. 

The inspector remarked that it is necessary to consider an application made under section 192 of the Act on the basis of what is actually proposed and not on the basis of un-proposed development the decision-maker speculates might occur. He pointed out that, were unlawful development to occur outside of a granted LDC, the council has discretionary enforcement powers with which to deal with it. 

Section 4.301 of DCP Online covers lawful use or development certificates and section 11.2 concerns multiple occupation. 

Look closely

An inspector has granted prior approval for the residential conversion of an office in an Essex market town under Part 3 Class O of the GPDO (DCS Number 400-036-060), despite the fact that the original planning permission carried the following condition:-

‘Notwithstanding the provisions of the Town and Country Planning (Use Classes) Order 1987 (or any Order amending, revoking and re-enacting that Order) the premises shall be used as an office within the Use Class B1(a) and for no other purpose within Class B’.

If you look closely at the condition you will no doubt see the reason why. 

Firstly, the inspector explained, the condition does not refer to the GPDO. As such, its function is as a definitional condition, which identifies the relevant use pursuant to the planning permission. He admitted that it could be said to preclude changes within Use Class B (albeit he found that debatable given the absence of a reference to the GPDO), but the wording of the condition did not expressly state that no other use was permitted. He reasoned that through words such as ‘shall only be used for’ or ‘solely used for offices and no other use’, for example, it could be argued that other changes (beyond those within Class B) would have (at that time) required planning permission. He determined, however, that Part 3 of the GPDO grants such permission (in the case before him under Class O), subject to conditions, limitations and restrictions. 

The inspector concluded that the effect of the condition was to define the lawful use and preclude the change to alternative uses within Use Class B. Therefore, it was not a condition which restricted the proposed residential conversion.

Further examples relating to this issue can be found at section 10.3131 of DCP Online.

One or both

In determining an appeal against the refusal of outline planning permission for 30 entry-level dwellings in a field outside the settlement boundary of a Buckinghamshire village, an inspector offered a useful insight into the meaning of ‘proportionality’ (DCS Number 400-035-950).

Paragraph 72 of the Framework, the inspector noted, seeks to support the development of entry-level exception sites, suitable for first home buyers. To comply with this policy proposals should be on land that is not allocated for housing, and demonstrate that a need for this type of housing is required. In deciding whether such schemes are appropriate outside development boundaries, he continued, the proposed sites should comprise one or more types of affordable housing; be adjacent to existing settlements; and proportionate in size to them. 

In this context the inspector recorded that proportionality is defined in the Framework via Footnote 35 which states that ‘Entry-level exception sites should not be larger than one hectare in size or exceed 5% of the size of the existing settlement.’ The appellants argued that because there is an ‘or’, if the scheme meets the size component, it does not have to meet the 5% component. This contrasted with the council’s approach of applying both components of the footnote to the proposed scheme. 

The inspector considered that the purpose of the footnote is to give guidance on Paragraph 72 of the Framework and to be flexible in its approach. Given that there is a vast amount of different villages throughout England, he reasoned, sometimes ‘proportionality’ will be dependent upon the size of the site; and sometimes it will be dependent upon the percentage increase in relation to the size of the settlement. Accordingly, it will be up to the decision-maker to make a judgement as to which is more relevant to the proposal at hand, sometimes it may be one of the specified components of Footnote 35 and sometimes it may be both. 

With regard to the scheme before him, he judged that, whilst the size of the site might be under one hectare, this was less relevant than an assessment of the percentage increase of the scheme relative to the size of the settlement. 

There is a section on rural exception affordable housing at 9.1311 of DCP Online. 

Putting a finger on it

This blog post concerns a topic we have raised previously, in On charge. That post related to the refusal of permission for an electric vehicle parking and charging area in front of a listed house in a Devon village. We raised the question of whether the implications of the move to electric vehicles had been properly thought through in respect of parking and charging. 

A similar case has come up (DCS Number 400-035-961), again in Devon. In this case the inspector found that the removal of railings and the creation of a hard surface, together with the scene of a car immediately adjacent to the appeal property, shielding it in part, would harm the village conservation area. He went on to put his finger on the problem:-

“I fully appreciate why the Appellant wishes to provide on-site charging for an electric car and all other things being equal almost all would see that as an environmental benefit. However, the question of how to deal with electric vehicle charging in areas such as this is a strategic and difficult one. It may need greater collective public or private initiatives because it is quite clear that convenience of charging and the sustainability merits attached thereto should not automatically trump other planning factors such as character and appearance and the value of heritage assets; these must form part of any sustainable development equation and planning balance.”

In the case before him the inspector gave greatest weight to the harm to the character and appearance of the locality, whatever the propulsion system of the car to be parked in the curtilage. 

The inspector is right. There is strategic thinking to be done. 

There is a section on electric vehicle charging points at section 13.647 of DCP Online. 

Upwards and onwards

In determining an appeal against the refusal of prior approval under Part 20 Class A of the GPDO for the upward extension of a block of flats in south-east London to provide an additional two flats (DCS Number 400-035-947) an inspector has provided a useful ruling as to whether the effect on the character of the locality can be taken into consideration. Here is what he says:-

“In a recent High Court judgement [Cab Housing Ltd and others v Secretary of State for Levelling Up, Housing Communities and others [2022]]  in relation to the interpretation of Class AA of Part 1 of Schedule 2 to the GPDO, a conclusion was reached that “the control of the external appearance of the dwelling house is not limited to impact on the subject property itself, but also includes impact on neighbouring premises and the locality”. The same logic can be applied to upward extensions at Part 20 Class A.”

Readers will be aware that BoJo is currently threatening the further expansion of the prior approval regime. Those charged with the implementation of this parallel planning system would be forgiven for feeling a degree of dismay at the news, since we are only just mastering the existing prior approval legislation. But hey, onwards and upwards. 

The permitted development classes are set out at section 4.342 of DCP Online.

On opening the envelope

An inspector has declared an enforcement notice directed at hedgerow removal and the erection of fences at a gypsy site in Sussex to be a nullity after finding that, on ‘opening the envelope’ on first receipt of the notice, the appellants would not have known with reasonable certainty what they had to do to comply (DCS Number 200-010-923).

The requirements of the notice, the inspector recorded, included ‘(iii) to submit details of species of hedgerow to be used to reinstate the hedgerow for approval by the Council; (iv) replant the hedgerow, as approved by the Council, within the first planting season following approval of details and (v) if within 5 years from the date of planting, any hedgerow is removed, uprooted, destroyed or dies, or in the opinion of the Council seriously damaged or defected, another hedgerow of the same species and size as originally planted shall be planted at the same place’ (inspector’s emphasis). He pointed out that all these requirements involved approval of details by the council or, in relation to requirement (v), a subjective judgement on the part of the council as to what might constitute ‘seriously damaged or defected'. 

The problem, the inspector explained, was that the appellants could not know, on first receipt of the notice, what details might be approved by the council, and therefore what they had to do to comply. Further, there was no mechanism through which the appellants could challenge any failure on the part of the council to agree the details submitted, or should the appellants consider the subjective judgements made by the council to be unreasonable or impossible to achieve.

In coming to his decision the inspector helpfully set out the legal background to the subject, including the court cases of Kaur v SSE & Greenwich LBC [1989] and Payne v NAW & Caerphilly CBC [2006]. We would refer you to his decision for further details of those cases.

The modern approach to the question of nullity, the inspector continued, is to be found in the judgment of Oates v SoCLG and Canterbury [2017], which drew extensively upon the preceding case law. A number of principles emerge from this judgment, he said, including that the test in Miller-Mead v MHL [1963] is best understood not as one of ‘hopeless ambiguity’ but rather as a failure to tell the recipient with ‘reasonable certainty’ what the breach of planning control is and what must be done to remedy it. He considered that the judgment in Oates also indicates that a degree of uncertainty does not necessarily render a notice non-compliant with statute and that the notice should be read as a whole. Overall, the judgment in Oates indicates that the question of nullity should not be approached in a way which is unduly technical or formalistic. 

Having regard to the judgments in both Kaur and Payne, it seemed to the inspector that the notice suffered from the same defect identified in those cases insofar as its requirements were dependent upon outcomes from the local planning authority over which the appellants had no control and could not anticipate. In his view, this went beyond the realms of a degree of uncertainty contemplated in Oates.

The inspector concluded that when read as a whole the notice did not comply with statute, specifically section 173 of the Act, or with the Regulations. Consequently, the found the notice to be a nullity. 

There is more on enforcement notice requirements at section 4.536 of DCP Online. 

The loss of privileges

In upholding enforcement notices directed at the material change of use of premises in north London to a house in multiple occupation and flats, the erection of a single storey rear extension and a dormer roof extension, in addition to the erection of a dwelling in the back garden, an inspector has pointed out that permitted development rights do not apply to buildings or uses which are unlawful (DCS Number 400-035-493).

With respect to the use of the main building, the inspector recorded that Section 55(3)(a) of the Act sets out that the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change in the use of the building and of each part of it which is so used. Consequently, the change of use to an HMO and flats was development for which planning permission was required. Further, Article 3(5) of the GPDO sets out that permission granted by Schedule 2 does not apply if (a) in the case of permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful; or (b) in the case of permission granted in connection with an existing use, that use is unlawful. 

It was not disputed, the inspector noted, that the rear extension and dormer met the limitations set out in Schedule 2, Part 1, Classes A and B, but what was in dispute was whether the premises actually benefited from permitted development rights at the time of their construction and if they did, whether the works which had been carried out were constructed to facilitate the unauthorised change of use. The appellant confirmed that the construction of the single storey rear extension, rear dormer extension and outbuilding were carried out at the same time. 

The inspector explained that, as held in RSBS Developments Ltd v SSHCLG & Brent LBC [2020], even where prior approval has been granted, Article 3(5)(a) may be engaged where unlawful works have been carried out. The same principle applies where in the case of permission granted in connection with an existing use, that use is unlawful (Article 3(5)(b)). The inspector found that the outbuilding had been used as a dwelling. He also found that the subdivision of the premises to form separate planning units constituted a material change of use and was unlawful. Consequently, he ruled that Article 3(5)(b) was engaged and the premises did not benefit from permitted development rights.

There is a section on multiple occupation at 11.2 of DCP Online.