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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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With all its faults

In denying prior approval for a proposed six-metre rear extension to a terrace house in north London an inspector has ruled that we must accept the foibles of the GPDO (DCS Number 400-034-877). 

The inspector concluded that the proposal would represent an enlargement of the dwelling house which would extend beyond a wall forming a side elevation of the original dwelling house and which would have a width greater than half the width of the original dwelling house. The proposal would therefore not accord with paragraph A.1.(j)(iii) of the GDPO and would not be permitted development, he determined. 

The appellant protested that the practical application of the guidance was a wasteful process to achieve a full width six-metre extension, reasoning that two half-width extensions could be developed, leaving a gap between the two elements which would then require planning permission to infill. 

The inspector acknowledged the technicalities and foibles of the GPDO, but explained that it is nonetheless a consistent procedure whereby development is either permitted by it, or as in the case before him, not permitted by it. He commented, moreover, that whether the appellant considered the Technical Guidance, or indeed the GDPO, to be flawed and wastes a local planning authority’s resources, it is nonetheless the procedure by which permitted development is tested. 

We just have to learn to live with it, really…..

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

By the look of it

An inspector has declined to issue a lawful development certificate for two air conditioning units at a house in Bedfordshire after deciding that they materially affected the external appearance of the building (DCS Number 400-035-038).

The inspector explained that Section 55 of the Act excludes from the meaning of development alterations to a building which do not materially affect the external appearance of the building. The case of Burroughs Day v Bristol City Council [1996], she continued, further establishes that for works to ‘materially affect’ external appearance, the changes must be visible from a number of vantage points and material to the appearance of the building as a whole.

The air conditioning units sat one above the other on the side of the house, the inspector recorded. The units and the ducting which linked them to the building were coated in a material which sought to mimic the brown brickwork of the house to which they were attached. She observed, however, that from some angles it was out of sync with the layout of the brickwork. The units were also clearly visible from the rear garden serving the house and in the context of the rear elevation. Combined with the projecting nature of the units on supporting brackets, the appearance of the fans inside the unit and the ducting, she found that the units had a material effect on the external appearance of the building.

In addition, the upper unit and the ducting were visible from the street adjacent to the driveway serving the garage next door and from the opposite side of the road when facing the appeal site. Thus, she concluded, at least parts of the units were visible from a number of vantage points.

The inspector concluded that the air conditioning units constituted development. 

There is further information relating to Burroughs Day at section 4.3151 of DCP Online: Material effect on external appearance. 

On charge

The owner of a listed building in a Devon coastal village has had a proposed parking area in front of his house turned down at appeal (DCS Number 400-034-570). The appellant explained that ‘we wish to facilitate an electrical vehicle charging point and associated off road parking for the property to meet the imminent needs of changing legislation for future car design’. 

The inspector held, however, that the albeit modest loss of the roadside stone wall’s historic fabric, the excavation back into the site, and the loss of enclosure to the street, would undermine the significance of both the listed building and the conservation area as designated heritage assets. This harm, he reasoned, would be exacerbated by the presence of a standing vehicle within the parking bay, which would partly interfere with views of the property from the carriageway.

The inspector acknowledged that the provision of a parking space might reduce traffic congestion in the village, which he saw was an acute issue. He also accepted that the electric charging point would support our transition to a more energy efficient, low carbon society. He considered, however, that the benefits of a single parking space were inherently small and it was not essential that the property was served by a parking bay. Furthermore, there was no guarantee that its occupants would not also own and park a further vehicle elsewhere in the village, nor that the charging point would be used, at least in the short term. The inspector decided that the benefits fell decisively short of justifying the harm that would be caused.

The authors of the electric vehicle legislation did think all this through…..didn’t they?

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

Ad medium fluvium

In dealing with a number of enforcement appeals directed at the change of use of agricultural land alongside the River Medway in Kent to leisure plots the inspector had cause to consider the extent of the planning unit (DCS Number 400-034-976).

The inspector explained that “ ‘Land’ is defined in s336(1) of the 1990 Act as any corporeal hereditament, including a building. The bed and banks of a river constitute a corporeal hereditament but the flow of water does not. With subdivision of the riverbank each riparian owner will normally own the riverbed up to the mid-point of the river.” 

The inspector observed that the riverbed was land outside the area covered by each of the enforcement notices issued in relation to the several plots. Vessels, some of which were named and others not, were moored above the riverbed alongside most plots in the river and all appeared to have some sort of mooring facility on the adjacent riverbank, although the degree of sophistication varied from a simple pole anchored to the ground to more sophisticated apparatus such as pontoons and landing stages. He reasoned that the planning unit to be considered should take account of the connection between the land used for mooring boats and the riverbed on which the boats were moored, as well as the overall use of the land. 

The inspector considered that the appropriate unit to consider was larger than the plots suggested by the council and should comprise all 31 plots including the extent of the riverbed that belonged to the riparian owners. He considered the submissions made against that position but determined that the planning unit was the stretch of the riverbank and riverbed “ad medium fluvium” (up to the mid-point of the river). 

Section 24.631 of DCP Online considers the maverick nature of plotland development and its challenges to planning orthodoxy. 

Home truths

An inspector has granted a lawful development certificate for the conversion of a garage at a terrace property in Essex to a workshop, overruling the council’s finding that the property could not benefit from permitted development rights as it was a flat rather than a dwelling (DCS Number 400-034-837).

Class A, Part 1 of Schedule 2 to the GPDO states that the enlargement, improvement or other alteration of a dwellinghouse is permitted development, the inspector recorded. He noted that there is no definition of a dwellinghouse within the Act. Nevertheless, Article 2(1) of the GPDO states that a dwellinghouse does not include a building containing one or more flats, or a flat contained within such a building. Article 2(1) defines a flat as, “a separate and self-contained set of premises constructed or adapted for use for the purposes of a dwelling and forming part of a building from some other part of it which is divided horizontally.” 

The inspector observed that the property was a one-bedroom, two-storey building and had a garden to the rear. The submitted floor plans indicated that at ground floor the building comprised a single entrance door to the front which led into a hallway and staircase to the first floor. The only other accommodation at ground floor level was an understairs cupboard, accessed externally, a car port, from which there was a side door into the hallway, and the garage which was solely accessible via the garage door. It was indicated that the first floor comprised living accommodation. 

The inspector reasoned that, whilst the living accommodation was divided horizontally from the garage and carport, it was not divided horizontally into separate dwellings, as the definition of a ‘flat’ indicates, or indeed other separate units. The fact that the ground floor was not living accommodation did not mean, he continued, that it must be defined as a flat. 

The inspector  was satisfied that the property constituted a dwellinghouse having regard to the definition in Article 2(1) of the GPDO since it did not comprise a building containing one or more flats, nor was it a flat contained within such a building. He concluded, therefore, that at the date the LDC application was made, the proposed development would have been lawful.

Information about the legal background to this matter can be found at section 12.51 of DCP Online.

Happy birthday, small llama

Taken from a recent appeal case (DCS Number 400-034-836):

“The indoor space would provide an area for small llama birthday parties…”

Happy birthday, small llama, happy birthday to yooooooouu.

There is a section on rural visitor attractions at 18.4 of DCP Online.

Not many people know that

A couple of interesting points have arisen from a recent appeal against the refusal of a certificate of lawfulness for extended operating hours at a concrete works in Essex (DCS Number 400-034-793).

The council had granted planning permission in December 1990 for the redevelopment of a factory for the manufacture of building blocks. The permission was subject to a condition which stated: “Work shall only be carried out on, and deliveries made to and from the site between the hours of 7am and 6pm Mondays to Fridays and between 8am and 1pm on Saturdays. No work shall be carried out on or deliveries made to and from the site on Sundays or Bank Holidays.” An LDC was sought, however, for a certificate of lawful use or development for the use of the site from 5am to 12am Monday to Saturday in breach of the condition.

The inspector explained that the onus was on the appellant to show when the breach of condition had begun and that the breach had continued thereafter, without material interruption, for a period of ten years. He was not persuaded, however, that the appellant’s evidence demonstrated when the use of the site over the extended period in breach of the condition had begun, or that it had operated between the hours of 5:00am and 12:00am Mondays to Saturdays for any 10-year period, without material interruption, before the date of the application. Rather, because of interruptions, he considered that there had been a number of fresh breaches of the planning condition at the site. 

The inspector also explained that, in accordance with the Ocado Retail Ltd v. London Borough of Islington and others [2021] judgment, if a condition has been breached continuously for any ten-year period, without significant interruption, that breach will be lawful thereafter, unless that lawful right has been lost through some event sufficient to terminate it. [Interesting point 1:] The breach does not have to be continuing at the date of an LDC application to become lawful. However, [interesting point 2:] the condition is not expunged. It is only that breach that has occurred continuously for any ten-year period that will become lawful.

Not many people know that.

Section 4.3012 of DCP Online covers LDCs for development in breach of conditions. 

A drop in the ocean

A recent appeal case (DCS Number 400-034-627) provides an example of reasoning which is seen so often that we have held off questioning it. 

“The proposal would add 2 dwellings to the Council’s housing stock. However, while every dwelling makes a contribution to housing supply and is therefore of benefit, including smaller and unallocated windfall sites, set against a significant deficit in the Council’s housing land supply the positive attributed weight of 2 units to this shortfall would be limited.” 

Now, there might be many good reasons for resisting development on unallocated sites. But we have to question this ‘drop in the ocean’ argument. It just doesn’t hold water. If the housing land shortfall is significant the benefit of two new houses is that much greater, isn’t it? Indeed, a more convincing argument might be that the benefit of two houses would be neither here nor there if the council’s housing land supply shortfall were only minor. 

Just putting it out there. 

Section 9.1321 of DCP Online concerns housing land supply in the rural area. 

Printed preferred

An inspector dealing with an appeal against an enforcement notice alleging the change of use of 10 west London flats to serviced rooms has explained exactly why it’s not a good idea to rely on web-based evidence (DCS Number 400-034-629):-

“There is also a reliance upon on-line references particularly from the Council”, the inspector relates, “and I am not given print-outs of what is referred to. This can be problematic because such references are not static and can change. There is no guarantee, when such links are viewed, that the webpages will contain the same information as they did when viewed by the Council or appellant when preparing their evidence. Only 2 of the references provided by the Council on their statement allowed me to view any details at all. On those, it was not clear how many bedrooms are available within the building for booking or what the precise address is and so they do not help demonstrate what the Council has alleged has taken place.”

Section 4.53 of DCP Online concerns the detailed practice considerations relating to enforcement. 

On the prowl

There is an exclusion zone of 400m for net increases in dwellings around Ashdown Forest in east Sussex, which is designated as a special protection zone and special area of conservation because of its value as habitat for rare bird species including the nightjar and Dartford warbler. Accordingly, it can be difficult to achieve consent for housing within the exclusion zone, and other such areas elsewhere, due to concerns about disturbance by dog walkers and predation by cats. Has anyone ever found out how far cats actually prowl, however? They have:-

In a recent appeal against the refusal of permission for a single dwelling near the Ashdown Forest (DCS Number 400-034-531) the appellants pointed out that the site was towards the outer edge of the 400m exclusion zone. Moreover, they submitted a study published in the Journal of Urban Ecology that found that the median maximum distance reached from home by cats was 141m in a suburban location and 148m in a peri-urban location, with a maximum range of 278m. The inspector acknowledged that, while this did not guarantee the safety of ground nesting birds, it did offer evidence that a cat associated with the proposed development was unlikely to give rise to predation. 

Nonetheless, the inspector concluded that it was likely that the development would give rise to additional recreational pressure on the Ashdown Forest special protection area and special area of conservation, which would have an adverse effect on their ecological value.

Section 4.169 of DCP Online concerns nearby ecological areas. 

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