DCP Blogs

Honesty may not always be the best policy

For LDCs the applicant’s own evidence does not need to be corroborated by independent evidence in order to be accepted. If there is no evidence to contradict it or otherwise make the applicant’s version of events less than probable, there is no good reason to refuse the application, provided the applicant’s evidence is precise and unambiguous to justify the grant of a certificate on the balance of probability.

In the case in question (200-012-174), to be immune from enforcement action and therefore lawful, the appellant needed to show the use had subsisted uninterrupted for a period in excess of ten years commencing before 6 June 2012. The appellant’s statutory declaration confirmed that in early May 2012 a couple of wheeled trailers were brought onto the farm, to provide the base on which the cabin was then constructed. Unfortunately for the final outcome, the appellant also stated in a letter appended to her statutory declaration, and confirmed verbally at the Hearing, that the cabin was not occupied as a dwelling until July 2012, during which time she and her partner had occupied a touring caravan on the land.

Clarifying that occupation of the touring caravan for those few weeks between 6 June 2012 and July 2012 could not be a part of the ten-year period of use of the cabin as a dwelling, the inspector had no choice but to find the ten-year rule had not been satisfied and the appeal must fail. He praised the appellant’s honesty but also pointed out that it had resulted in his conclusion.

Just maybe the inspector was alluding to the difference between honesty and truthfulness. Sometimes there is a place to be economical with the truth without being dishonest and telling lies. After all, a criminal defence lawyer defending a client, has no obligation to actively present the truth so long as no lies are told. With professional representation, perhaps the appellant may also have been guided to a different outcome.

Appealing a refusal to issue a LDC is discussed in 4.3014

RIP the duty to co-operate?

In the beginning, three neighbouring Gloucestershire councils co-operated to produce a joint core strategy. When that plan reached five-years old without review, each authority was required by the NPPF to calculate their own administrative area local housing need under the standard method. The rural authority that had accommodated strategic housing allocations meeting the needs of the two urban authorities, more constrained in administrative area and by green belt and area of outstanding natural beauty designations, then unliterally declared that the housing numbers provided by those urban extensions now belonged to their own supply. Hey presto, the council could claim to have a five-years housing land supply, which it couldn’t previously demonstrate.

Maintaining its stance in the face of decisions by two other planning inspectors who found against the advocated approach, the council was again told that its position was not correct by a third planning inspector (200-012-123). In fact, the inspector expressed surprise that the council continued to claim that the urban extensions concerned contributed to its own housing land supply.

The inspector pointed out that the council appeared to have disregarded the statutory basis for decision-taking to be in accordance with the development plan (except when it supported resisting housing proposals in a location contrary to spatial strategy). He went on to specify that “nowhere in the NPPF or PPG is it expressly stated that local housing need was intended as a broader shift to planning on an authority-by-authority basis…..The duty to co-operate remains”. Noting that more than one council was now counting on supply from the urban extensions, the inspector described this as “a bizarre situation” whereby some housing delivery would be occupied once but counted twice. When these sites were discounted from the council’s supply, the inspector found that at best it stood at 3.39 years, which was deemed a significant shortfall.

The inspector concluded by urging meaningful resolution of the bizarre situation through progressing a review of the joint development plan – in other words, please co-operate! Will the council finally accept and lower the drawbridge, or seek judicial review?

DCP 4.2 Development Plans and Policies provides further insight, and DCP 7.131 looks at assessing development proposals against housing land supply and delivery.

Hazards of a garden pond

Permission was sought for change of use of open countryside to garden land including a pond (400-042-158). In the inspector’s opinion, insufficient information as to the nature of the land and the construction of the pond had been provided to be certain that it would not create a risk of flooding. Excavation of the pond would remove a substantial permeable area serving the site. The inspector considered that whilst the pond might be able to hold some additional water in times of heavy rain, there were no details of how the water levels would be managed to prevent it overtopping the banks of the pond.

Concluding that the proposal had the potential to result in unacceptable flood risks, the inspector ruled it was contrary to local and national policies seeking to minimise flood risk and surface water run-off. It’s obvious when you know.

Curtilage extensions are discussed further in DCP 12.9 and flooding in DCP 4.165.

Caveat emptor

Many a hapless listed property owner has unwittingly undertaken ‘improvements’ only to find the wrath of the conservation officer brought down upon them, maybe culminating in enforcement, a failed appeal and costly works to put things right. In making these comments, we are distinguishing from those cases where a carry-on regardless attitude has resulted in quite deliberate alterations and loss of historic fabric, and there are plenty of those unforgiveable examples.

Top of the list of unwitting alterations must be the replacement of windows, and there are numerous appeal cases dealing with this matter. Another type of remedial work which commonly occurs is damp-proofing. Listed buildings are generally lacking in damp-proofness and, let’s face it, who wants mould growing in their home?

A Gloucestershire homeowner decided enough was enough with the damp in his C18th house and brought in damp specialists. Their survey pointed to the lack of a damp proof course (dpc) and high ground levels outside, and recommended drilling and injecting a dpc, covering all the walls in a tanking slurry and replastering internally in a salt retardant sand and cement finish to stop further water penetration. A listed building application for the works was refused and appealed (400-042-102).

After carrying out a careful inspection, the inspector’s view was that the cause of the damp needed more specialist investigation and a solution based on well-established conservation practice. The inspector’s concern was that whilst the proposed works would prevent the water in the wall evaporating into the house, it wouldn’t address the water likely to be trapped within the wall which could lead to a deterioration in the building fabric. The inspector was also not convinced that injecting a dpc would be effective in creating a barrier to the damp given that the stone wall was likely to be rubble-filled, suggesting there were other ways to eradicate the damp without harming the building’s special interest and significance.

Getting specialist advice is crucial to avoiding mistakes when it comes to old buildings. In some ways this homeowner had a lucky escape through being refused listed building consent, otherwise more damage could have been done and money wasted. It begs the question, wouldn’t it be sensible if more was done to inform owners when they take on a listed building; maybe some sort of homeowner pack could be handed out by the conveyancing solicitor, or sent out by the council when new occupiers register for council tax. After all, the council knows which buildings are listed, it just takes some joined up departmental working. It really would be in everybody’s interest and, importantly, help conserve heritage assets.

More information relating to listed building alterations can be found in DCP 27.2.

Detective work

A decision to refuse a certificate of lawful use to use a bungalow as a dwellinghouse without an agricultural occupancy condition was challenged at appeal (400-041-895). The problem was the council only had record on its database of the 1975 reserved matters permission pursuant to a 1973 outline permission for erection of an agricultural bungalow, but not a copy of the original outline. The local land charges database only went back as far as 1977 and the appellant was unable to supply a copy.

At the outset the inspector declined to be swayed by the council’s assertions that it would have attached an occupancy condition to a 1973 outline permission for a development described as an ‘agricultural bungalow’. Clearly a man of experience, the inspector found this far from certain, explaining that over the years he had come across examples, especially in older planning permissions, where the occupancy condition had forgotten to be attached or worded so badly it was unenforceable, or the description of the development had been relied upon instead.

With no operative condition to restrict the occupation of the dwelling, the inspector went on to consider whether the wording of the description of development implied a condition. Examining caselaw on the matter starting with I’m Your Man Ltd v SoS [1998], the inspector found similarities with Winchester CC v SSCLG & Others [2015], in which the court held that a planning permission described as a ‘travelling showpeople’s site’ was limited to people who were travelling show persons.

Although he did not think a condition could be implied, because the original planning permission did not exist, the inspector considered the principle that the wording of an application can be sufficient to imply a condition squared with Winchester. The fact that travelling showpeople were a distinct group with their own specific planning issues was important in Winchester, and he reasoned that agricultural workers were also a distinct group and the occupation of the bungalow by a non-agricultural worker would therefore be a material change of use raising different planning issues. He dismissed the appeal.

Useful practice guidance is available in DCP relating to occupancy conditions generally (4.4262), absence of express conditions (4.4114) and removal of agricultural occupancy conditions (9.4).

The new face of section 73

In the recent case of Armstrong v Secretary of State [2023] it was held that the only restriction in law on section 73 is whether a fundamental alteration of the development permitted creates conflict between the operative part of the permission and the conditions imposed upon it. Guidance on amending conditions now states that an application under section 73 “can be used to make a material amendment” and “There is no statutory limit on the degree of change permissible to conditions under s73, but the change must only relate to conditions and not to the operative part of the permission.”

Given this ruling and new guidance, it is now to be accepted that whether or not a proposal forms a fundamental variation, it falls within the scope of a section 73 application and what is relevant is whether the change relates to the operative part of the permission.

This and further questions were debated in an appeal concerning a co-living accommodation scheme for students and young professionals in Sheffield (200-012-075). Permission had been granted for 1,235 co-living studios and apartments, subject to a section 106 agreement securing the submission of an affordable housing scheme. The description of development in the original permission did not refer to affordable housing, and therefore the s73 application to substitute plans removing a notation identifying the affordable units did not conflict with the operative part of the permission, the inspector held.

She also had to consider the relationship between the section 73 application and the existing section 106 agreement. The starting point was the ruling in Norfolk Homes v North Norfolk DC and Norfolk CC [2010], that a section 106 obligation is a freestanding legal instrument. It therefore did not form part of the permission. Furthermore, from Batchelor Enterprises Ltd v North Dorset District Council [2003] it followed that inconsistency with an existing section 106 agreement was a legal matter between the council and the developer and did not prevent her from granting planning permission.

For more commentary on removal or modification of conditions, see DCP 5.135, and planning obligations are examined in DCP 4.61.

Not in my back yard

Neighbour relations are sensitive at the best of times but add in the additional activity, noise and parking generated by a garden holiday let and they can become positively strained. Cue an enforcement notice alleging a material change of use to a mixed use comprising a residential dwellinghouse and use of a garden outbuilding for holiday accommodation or separate occupation not incidental to the dwellinghouse (400-041-700).

Determining the deemed application, an inspector found a fenced-off area of the garden of the semi-detached house contained an outbuilding consisting of a bedroom, bathroom and kitchen facilities, and a separate building housing a hot tub. The council specifically referred to an upsurge in the number of comings and goings, and parking on the highway in the small residential cul-de-sac. Neighbours raised matters including noise from wheeled suitcases and outdoor use of the accommodation, smoke drifting onto washing lines from a fire pit, strangers peering in through windows, unneighbourly parking including blocking in residents, elderly residents feeling unsafe as a result of traffic by strangers, and a potential risk to the accessibility of properties by emergency services as a result of the parking problems.

The inspector acknowledged that off-street parking at the property could not accommodate both residents’ cars as well as those of any holiday accommodation guests but saw no reason why safe on-street parking could not be achieved without neighbours being unduly inconvenienced. In her opinion the coming and goings associated with a one-bedroom let would not be excessive, and the likelihood of unneighbourly behaviour was not significantly greater than with normal residential use.

Overall, the inspector accepted that the use of the building by holidaymakers had resulted in some changes to the character of the cul-de-sac, but the impacts on the living conditions of the adjoining neighbours were not unacceptable or a nuisance. Try telling that to the neighbours!

More on short-term lets can be found in DCP 11.8 and self-catering holiday accommodation is explored in DCP 9.5.

A clear view on green belt openness

It was therefore helpful to be reminded in an appeal decision of the importance of public perception of green belt openness (400-041-492). The proposed equestrian scheme involved six stables and hardstanding and subdivision of an adjacent field with post and rail fencing into separate paddocks. Being related to outdoor recreation, the development was not inappropriate provided it preserved green belt openness and did not conflict with green belt purposes.

The inspector was in no doubt that the introduction of a relatively wide and long building of significant volume, would impact upon spatial openness, but held that this alone was not sufficient to harm green belt openness. In his view, visual perception was a factor which could reduce spatial harm. In this case, the perceived effect upon openness was less than might be expected because the development was well-screened and would have a limited effect upon people’s perception of openness from beyond the boundary of the site. In addition, the countryside was a suitable locational context for stables and therefore the development would not be a material encroachment conflicting with a purpose of including land in the green belt. Flowing from these findings, the inspector’s conclusion was that the proposal would not be an inappropriate development within the green belt and he allowed the appeal.

Assessing the effects of development on green belt openness is explored in detail in DCP 4.251.

Shipping containers are not a building - ashore thing!

Of course, in the same way that caravans (another metal box) provide instant homes, it is not hard to see the attraction of the shipping container as a ready-made transportable alternative to a building. Shipping containers are often re-purposed, most commonly for storage as would be expected but increasingly for other uses such as start-up workshop space (200-012-019), a home office (400-033-499) or a hot food takeaway (400-033-727).

Deciding whether siting a shipping container or containers on land amounts to development, and whether that development is a change of use of the land and/or involves building operations, requires a fact and degree planning judgement that offers plenty of scope for a difference of opinion.

Exactly this happened with an application for a change of use of a building supplies depot to a self-storage facility involving 98 shipping containers on an existing hard-standing (400-041-581). The Yorkshire council refused to validate the application having formed the opinion that the shipping containers created floorspace for which the correct application fee was £8,316. The applicant maintained that the proposed development was for a change of use of the land only and the correct fee was £462. After serving a DMPO article 12 notice on the council and receiving no response, the applicant appealed non-determination.

The appointed inspector agreed with the appellant that the shipping containers were not buildings, the correct fee had been paid and the application was valid. In his reasoning, the inspector took into account that the containers would rest on the ground and not be fixed to it, or provided with any utility services. The ground was already hard surfaced and did not require preparation. Each container would be limited in size and could be transported by a lorry and placed on-site by crane and did not need assembly on site, or require demolition when removed. The inspector accepted the containers could be on the site for many years but ruled that, as a matter of fact and degree, they did not amount the erection of permanent structures.

On the planning merits of the self-storage facility, the inspector found no harm on the issue of highway safety raised by the council, and allowed the appeal. A full award of costs was made against the council for declining to validate the planning application without explaining or substantiating why it considered the shipping containers were buildings, and this had led to the delay of a development that should have been permitted. The inspector also noted the council did not provide an explanation in defence of their decision during the appeal.

Sources indicate that 2.6 million shipping containers are manufactured every year on average, jumping to almost 5.2 million in 2021 due to the effects of Covid. So, with a mere 2,000 or so being lost at sea each year and a sea-worthy life-span of around twenty-five years, there will be no shortage of containers for re-purposing any time soon and it is well worth being briefed on the planning implications.

More cases involving shipping containers can be found in DCP 21.3151.

Elevating the humble caravan

This prefab garden annexe trend does, however, create something of a headache when working out whether planning permission is required, despite any blithe claims by the manufacturers that it isn’t. No development requiring permission will have taken place if the structure falls within the definition of a caravan, and is used for a purpose incidental to the enjoyment of the dwellinghouse. Without building operations or a material change of use of the land, it would be lawful.

Just such an analysis was undertaken by an inspector in refusing a lawful development certificate for what the appellant described as ‘a mobile home for use ancillary to the main dwelling’ for elderly parents to live in, in 400-041-392. The appellant suggested the modular annexe structure would either be brought pre-assembled to the site on a lorry and craned into the rear garden of the house, or delivered in sections and assembled on-site.

Notwithstanding ruling out the craning option due to site constraints, the inspector addressed the appellant’s claim that the structure met the s29(1) of the 1960 Caravan Sites Act definition of a caravan, due to it being designed for human habitation and capable of being moved. The canny inspector deduced that moving the structure by crane hoist would require transport beams but none were shown on the submitted plans, and the manufacturer’s video showed only a smaller structure in the range being moved by crane. Moreover, the inspector found nothing to demonstrate how the structure could be moved once in-situ and concluded overall it was not a caravan.

Applying the tests of size, permanence and physical attachment established by caselaw, the inspector confirmed the structure amounted to a building and that a builder was required to assemble the pre-manufactured component parts. She decided the garden annexe was development, and with no suggestion of any relevant permitted development rights, it followed that planning permission would be needed.

More on practice matters concerning self-contained accommodation in residential annexes can be found in DCP 10.2, on the legal definition of building operations at 4.3111 and the legal definition of a caravan at 4.353.