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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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Only human

We are only human and there can be no doubt that memory fades over time. An inspector dealing with an appeal against an enforcement notice alleging the storage of equipment and materials relating to a plant hire and construction business operating from a farm in Worcestershire (DCS Number 200-010-690) has cited court cases which recognise this phenomenon. 

In dealing with the question of immunity, the inspector recorded that correspondence from 2009 to 2011, including a planning officer’s report and an inspector’s decision, corroborated the appellants’ accounts of the business having been run from the site at around that time.  She noted that the courts have stressed the importance of contemporaneous documents as a means of getting at the truth, saying that such documents are generally regarded as far more reliable than the oral evidence of witnesses in some cases (Simetra Global Assets Ltd v Ikon Finance Ltd [2019]; Bates v Post Office No. 6 [2019]). 

After examining all of the evidence the inspector concluded that the material change of use took place more than 10 years prior to the issue of the enforcement notice, that there had been no material change of use in the intervening period, and that the time for issue of the enforcement notice set out in section 171B(3) of the 1990 Act had therefore expired. 

Section 4.5351 of DCP Online concerns the ten-year rule for unauthorised uses.

Get cracking

A recent appeal decision has reminded us that Shrove Tuesday falls on 1 March this year:-

In assessing the effect of a proposed solar farm on the rural landscape in Nottinghamshire (DCS Number 200-010-679), the inspector judged that during the construction period and the first year the scale of effect would be major and would have a significant adverse effect on landscape character. However, given the relatively short construction period, some 26 weeks, and at a time when the mitigation planting would be young, he considered that such adverse impacts could not be avoided. Thus, the weight he attached to these early effects was limited, reasoning that, ‘as François Athanase de Charette de la Contrie is reputed to have said, “…you cannot make an omelette without breaking a few eggs”. ‘

Or a pancake....

Section 26.536 of DCP Online concerns solar energy.

Previous to previously

An appellant in Hertfordshire has failed to convince an inspector that the conversion of a single dwelling to its previous use as two cottages did not required planning permission (DCS Number 400-034-174).

The appellant argued that the building operations which were involved did not amount to development. The inspector acknowledged that Section 55(2) of the Act sets out that operations which affect only the interior of a building do not amount to development. She noted, however, that the works were to facilitate the subdivision of the single dwelling into two dwellings. 

The appellant stated that the cottages were built around 1860 and that they had been used as a single dwellinghouse since 1992. He argued that a material change of use is a matter of fact and degree and is dependent on the merit of the case. The inspector agreed that in some circumstances this is the case, but pointed out that Section 55(3) of the Act sets out that for the avoidance of doubt the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change of use. The appellant nevertheless maintained that the intention of the word ‘previously’ in Section 55(3) is not to preclude the earlier state of an occupied building. The inspector was unconvinced, however, noting that the appellant had provided no evidence to support this contention, for example in the form of legal precedent. A certificate of lawfulness was denied.

The legal background to the subdivision and amalgamation of dwellings can be found at section 11.11 of DCP Online.

A sporting chance

Following on from the International Olympic Committee’s acceptance of Big Air as a competitive sport at the Beijing Winter Olympics we are pleased to report that the planning system has also validated a new high-injury-risk sports discipline: dog agility.

In determining an appeal against the refusal of planning permission for the change of use of agricultural land to a mixed agricultural and sui generis use for the training of canines in the green belt near Bath (DCS Number 400-034-303), the inspector recorded that paragraph 150e) of the Framework states that material changes of use, including ‘outdoor sports’ are not necessarily inappropriate in the green belt provided they preserve its openness and the purposes of including land within it. 

The inspector noted, however, that the Framework does not define ‘outdoor sport’. The appellant indicated that the dog training area would be used for dog agility sessions, whereby a handler guides a dog through a series of obstacles in a race against the clock. The inspector remarked that it therefore involves an element of physical activity and skill on the part of the handler, while timing of the event suggested that the handler and dog are competing against others. To the inspector’s mind the combination of physical activity and competition would likely be entertaining and enjoyable for participants, factors that would commonly be associated with sporting activities. Therefore, in the terms of the Framework, she determined that the proposal would constitute an ‘outdoor sport’. 

While this appeal was dismissed, primarily on harm to openness and rural character resulting from the presence of apparatus and extensive car parking, there’s a sporting chance it might work elsewhere?

Section 4.2513 of DCP Online concerns the issue of appropriateness in the green belt. 

Guardian angels

In determining an enforcement appeal relating to a former pub in east London the inspector ruled on the status in planning of property guardians (DCS Number 200-010-647).

The inspector recorded that the use of property guardians is a relatively new but popular means of providing security for empty buildings that would otherwise be vulnerable to squatters. The property guardians must live in the building as they find it without making any substantial changes and provide on-site security. In return they pay a below-market rent to the security company. The arrangement is intended to be a temporary solution until a viable use is found for the building.

The inspector remarked that there appeared to be no advice or regulations concerning the planning matters that might arise. He identified the problem in the appeal before him as being that although the appellants had no desire or intention to claim or suggest that the installation of the property guardians had created a material change of use to residential, the council was concerned that this was exactly what had happened. 

The appellant argued that the occupation by property guardians was only temporary and involved no substantive works to the building. The inspector reasoned, however, that the fact that there had been no substantive works was of little relevance as it was the use that was important. As to its temporary nature, there was no guarantee of how long that would be. If it proved difficult to rent out the pub then it was possible the property guardians could remain in place. After four years an LDC for a material change of use could be applied for and such an application would be difficult to resist. He concluded that a material change of use to a residential use had taken place.

Section 10.3 of DCP Online covers the residential conversion of commercial buildings.

A rare appearance

Taken from the ‘Appearances’ list from the recent appeal relating to the expansion of Bristol Airport (DCS Number 200-010-636):-

WRITTEN SUBMISSIONS FROM THOSE WISHING TO APPEAR BUT UNABLE TO DO SO - Roary the Dinosaur - on behalf of extinct dinosaurs.

No doubt Roary had concerns about climate change.

Section 26.431 of DCP Online concerns airport developments. 

Divided opinion

In determining an appeal (DCS Number 400-034-145) against the refusal of planning permission for nine houses on land identified as public open space on a site previously granted outline permission for up to 75 houses in Essex, an inspector found that the site had been artificially subdivided and as such the proposal did not make adequate provision for affordable housing. 

Local plan policy required new residential development of more than 10 units to make 30 per cent provision for affordable housing. The council contended that the affordable housing provision should be considered collectively as a development resulting in a total of 84 dwellings. The parties referred, the inspector noted, to the High Court judgment in Westminster City Council v FSS and Branlord that suggested three ways in which a conclusion might be reached on the matter. The first was whether the site was in single ownership. The council indicated that the site was within the same ownership as the wider site. The second set out whether the sites constituted a single site for planning purposes. The appeal site, the inspector observed, was part of the original red line outline planning application and permission boundary. The third was whether the proposal could be deemed to constitute a single development. The proposal, she noted, was within the outline permission site area and would be served by the same site entrance and estate roads and could readily be viewed as part of the residential development.

The appellants argued that they had purchased the site subsequent to the grant of outline planning permission and at a point when the affordable housing provision had already been agreed. As the inspector saw it, however, despite the sale of the site, the site before her remained in the same ownership as the wider site. Although now owned by the appellants, it remained part of the site that formed part of the original outline planning permission that was served by the same entrance and estate roads.

The inspector concluded that the proposal would represent an artificial sub-division of the site of the previously approved scheme and that the affordable housing provision should be considered collectively, as a development resulting in a total of 84 dwellings. As such, the proposal did not make adequate provision for affordable housing for which there was a clear need within the district. This brought the proposal into conflict with local plan policy and the Framework.

Section 7.3333 of DCP Online concerns threshold manipulation in respect of affordable housing provision. 

Chinese New Year

Here is an appeal case involving Chinese lanterns, as we enter the Year of the Tiger. 

The appellant company was based in Lincolnshire and dealt with the importation, sorting and baling of end-of-life tyres. The company succeeded in its appeal against the county council’s refusal to allow the storage of tyres outside the building outside operating hours (DCS Number 400-034-173).  

The inspector noted the appellant’s comment about the amount of time that it took to move tyres from outside to inside the building and vice versa and that this had adverse economic impacts. 

In addressing the council’s concern about the potential for arson or tyres setting fire due to extreme heat during hot weather or from Chinese lanterns, the inspector remarked that tyres are not prone to self-ignition due to hot weather as they must be heated to at least 400 degrees Celsius for a period of several minutes prior to ignition. In this regard, he held that the council’s comment was not reasonably substantiated or indeed accurate. He also considered that the potential for a Chinese lantern to land on the site was remote. Furthermore, he reasoned, it was likely that if one did land on the site it would no longer be ignited and, even if it were still ignited it would be unlikely to heat tyres to the sort of temperature needed for a fire to take place. 

Partial costs were awarded against the council. 

There is a section on fire prevention at 4.1542 of DCP Online.

Altitude sickness

Readers will be aware that inspectors have come to differing conclusions about whether the effect on the street scene ought to be taken into consideration when dealing with prior approval applications for upward extensions. At risk of irritating those who are already thoroughly sick of the muddle that has been engendered by the unclear wording of the GPDO on such extensions, we thought we should report a recent appeal case (DCS Number 400-034-028) in which the inspector was faced with the question as to whether the historic environment should be taken into account. 

This case concerned an appeal against the refusal of prior approval under Schedule 2, Part 20, Class AA of the GPDO for the construction of two additional storeys on an existing building in the north-east to form four flats. 

The appellant argued that there is no protection extended to the setting of designated heritage assets in paragraph AA.2(1). The inspector considered, however, that she was obliged to have regard to the NPPF in so far as relevant to the subject matter of the prior approval. In the case before her she found that the context of the building clearly derived some of its qualities from the historic environment which included nearby listed buildings. She noted that the appellant questioned the council’s use of the term ‘visual amenity’ in relation to the heritage assets but, regardless of the terminology used, she was satisfied that it was correct to consider the effect on the historic environment, in line with NPPF policies. 

The inspector noted that a number of decisions which had been drawn to her attention took a different approach from her own in terms of the character and appearance of the wider environment. She determined, however, that she was bound to assess the proposal on her own reading of the case and the relevant legislation and policies. She concluded with ‘The fact that others may have taken an alternative approach has not led me to a different conclusion on the appeal before me.’

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

On a straightforward reading

Part 20, Class A of the GPDO allows for flat block additions provided that the building was not constructed after 5 March 2018. In deciding an appeal in Reading, however, (DCS Number 400-034-008), an inspector noted that there is no definition within the GPDO of what stage a building needs to be at before it can be considered to be constructed. 

The appeal before the inspector was against the refusal of prior approval for the addition of two storeys to an existing detached block of flats to provide six additional flats. 

The appellant suggested, the inspector recorded, that comparisons could be made with the term ‘substantially completed’ that is used in Section 171B of the Act in the context of planning enforcement. The inspector held, however, that there is a difference between ‘was constructed’ and ‘substantially completed’. He considered that ‘substantially completed’ implies that most of the work has been carried out but construction work is still underway, whereas an ordinary reading of the phrase ‘was constructed’ relates to something that has already taken place.

After considering the evidence and in light of a straightforward reading of the phrase ‘was constructed’, the inspector determined that the building was still under construction after 5 March 2018. He therefore concluded that the proposal would not be permitted development. 

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

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