DCP Blogs

Bare Ps

In a sheltered office far away from inner city streets, it therefore came as a bit of an eye-opener to come across a dismissed appeal concerning an apparently straightforward cash machine proposal (400-041-203). Turns out that the location of the ATM was none other than a street in Manchester notorious as the UK capital for the sale of counterfeit goods, where shops trading in fake goods make millions of pounds to fund criminal gangs.

The police advised that these counterfeit shops and other illegal sales and activity rely on cash and restricting the immediate supply of cash would greatly assist in addressing the locality’s problems, which included exploitation and violence. The inspector agreed that whilst in principle ATMs are a necessary facility, the specific circumstances of the area outweighed this generality, rejecting the appellant’s arguments about a positive contribution to the local economy!

In planning parlance, the inspector concluded the ATM would be harmful in terms of crime and the perception of crime in the local area, and was therefore in conflict with local and national planning policies seeking to ensure developments make a positive contribution to the health, safety and wellbeing of residents, create safe environments where crime and the fear of crime do not undermine the quality of life or community cohesion, and have regard to community safety and crime prevention.

Discussion of crime and disorder as a general material consideration can be found at DCP 4.124 and specifically in relation to cash dispenser proposals at DCP 15.3.

A load of old bollards

The 500mm high retractable bollards would be positioned in rows of three either side of a central planting area in the front garden. As a starting point, the inspector cited case law in Ewen Developments Ltd v SSE and North Norfolk DC [1980] which established that the term ‘other means of enclosure’ is subject to the ejusdem generis rule, meaning that the bollards had to be of the same kind as (or similar to) a gate, fence or wall.

The inspector did accept that when they were erect the bollards would offer some visual separation and physically exclude vehicles, performing some function of enclosure. However, although the appellant drew similarities in the appearance of the bollards to gate and fence posts, the inspector pointed out that it is the combined effect of posts with panels in between that creates a character of enclosure, which would be lacking and indeed totally absent when the bollards were retracted, unlike an open gate. She reasoned that while a dwarf wall might be low and easily stepped over and a post and wire fence appear only lightweight, they nonetheless provided a continuous barrier which the bollards didn’t.

As a matter of fact and degree, the inspector concluded that the bollards were not sufficiently similar to gates, fences and walls in their appearance, character and function to be permitted under Class A, and that the council’s refusal to grant a certificate of lawful use or development was well-founded (400-041-388).

Further information and cases exploring householder permitted development rights for walls, fences or other means of enclosure can be found at DCP 12.3.

A bridge for the three billy goats gruff

The council alleged an unauthorised engineering operation had taken place. However, in the inspector’s assessment, the bridge amounted to a building coming under a national green belt policy exception for new buildings not being regarded as inappropriate development that is given for agricultural and forestry buildings in NPPF paragraph 149(a). There was no dispute that the activity on the land fell within the definition of agriculture.

The appellant had operated a registered agricultural livestock holding for around 25-years, and erected the wooden bridge to provide a direct link between a paddock within the grounds of his village-edge house and an adjacent field in his ownership, spanning over a public footpath that separated them. As the appellant explained, the bridge avoided the problem of regularly shepherding errant goats a long way around through a series of gates and bocking the footpath, also assisting with moving feed, tools and grass cutting equipment.

In the inspector’s judgement, the 10m x 1.8m bridge satisfied the three primary factors of size, permanence and physical attachment laid down in case law as determinative of a building meeting the sec.336(1) definition. Furthermore, the relatively modest scale of works to erect the bridge had not involved engineering operations. In particular, the inspector noted there were no extensive groundworks, large abutments or retaining walls,  and stated that pre-planning and supervision by persons with engineering knowledge did not automatically categorise the works as engineering operations as this input can equally be associated with the erection of a building. As a building for agriculture, the bridge did not constitute inappropriate development in the green belt and had limited visual impact, the inspector allowing the appeal and granting permission for the deemed application (see 400-041-147).

Just like in the fairy-tale, a happy ending for the goats.

Keeping an eagle eye on the legal

Developments in locations where effects on protected habitats, whether through recreational pressure or waste water nutrients, necessitate a legal undertaking to secure mitigation, are common among those falling victim to such a scenario but are certainly not alone. Two recent Class O office to residential prior approval schemes caught by the Habitat Regulations, underline the importance of a properly executed legal undertaking.

One of the appeal cases (see 400-041-150) concerned a remitted decision, the original decision having been quashed in the High Court. Second time around, a different inspector considered the implications of the location of the five-storey building within the zone of influence for a special area of conservation in Staffordshire. A signed and dated unilateral undertaking submitted by the appellant provided a mechanism for securing a contribution towards the council’s strategic access management and monitoring measures, by way of mitigation of recreational pressure from occupiers of the proposed flats. Although he noted the unilateral undertaking had a number of issues, bearing in mind the High Court judgment, the inspector reached a different conclusion to the previous inspector. He deduced that although the development was not clearly defined in the first schedule, in the context of the wider unilateral undertaking, it was in fact clear what was being referred to. This time, the unilateral undertaking was held to secure suitable mitigation, enabling prior approval to be granted.

The appellant in the second appeal case (see 400-041-149) had a close call. The sole main issue concerned the effect of the proposed development on a Kent coastal special protection area and Ramsar site.  A unilateral undertaking to secure a financial contribution towards the necessary mitigation of recreational effects was contested by the council. The matter of dispute related to the ownership of the appeal site, given that it was sold during the course of the application. Fortunately the appellant was able to provide evidence identifying the new owner as a signatory of the unilateral undertaking and the inspector, satisfied that the proposal would not adversely affect the integrity of the protected habitat site, allowed the appeal.

The devil is so often in the detail.

Off to mow a meadow

Some might even have thoughts straying towards the convenience of artificial grass over real grass. If so, stop and think again! This really would not be the right thing to do according to an inspector who set out in no uncertain terms and in some detail, the many reasons why artificial grass is not a patch on the real thing and should not be used to surface the entire garden of a house subdivided into four dwellinghouses, finding against the appellant on the issue of landscaping quality.

First off, artificial grass is made from plastic and has no ecological or biodiversity value. Second, apparently fragments of plastic grass can break off and pollute soils for a long time. Thirdly, artificial grass can hold a lot more heat than natural grass, making it hot to walk on and increase air temperatures. Fourth, it has poor drainage and environmental credentials adversely impacting on surface water run-off, urban cooling and climate change. Overall, the inspector concluded an artificial grass garden would provide a harsh surface and degraded environment, resulting in a poor quality of landscape and amenity for occupants.

While we thought artificial grass looked, well….artificial, we had never stopped to think through why it is such an abomination. So, if anyone has need to make the case for why artificial grass should not be used, this appeal decision (400-041-109) has provided all the answers.

For more information and appeal cases that have considered the quality or functionality of garden space in residential subdivisions, see DCP Online section 8.1335.

Going the extra mile, sustainably

This presents something of a challenge to applicants seeking permission for off-plan windfall sites outside of settlement boundaries, even when the case for development is bolstered by a lack of five-year housing land supply. It is therefore interesting and occasionally amusing to come across the artifice employed in efforts to make the case that a site is sustainably located and accessible.

One particular developer, having had a proposal for five houses outside a small village with only a pub by way of services and no public transport, rejected at appeal, see 400-041-057, decided to have another go with a scheme for five zero-carbon dwellings. This time, not only were the houses designed for home-working with remote access cold-stores for home food deliveries, electric vehicle charging points would be provided for each property along with a dedicated space for an electric community car club. A completed sec.106 contained restrictive covenants precluding any petrol or diesel vehicles from the dwellings.

Unfortunately the inspector was not persuaded, finding it unlikely there would be sufficient demand for a car club within the small village in the way there would be in an urban area, giving little weight to it as a benefit, and also questioning the enforceability of the sec.106. Nonetheless, this effort has to trump the developer who merely proposed to supply each household with a couple of electric-bikes. Whatever next?

Further information concerning sustainable development can be found at section 4.1114 of DCP Online

Lesser of two weevils

Nonetheless, reading the appeal decision (see 200-011-959), it became clear that this phrase is in fact quite apt, given that the inspector had to decide whether harmful subdivision of the listed building into six flats was in fact the optimum viable use necessary to secure the building’s future.

The inspector was clear that subdivision would diminish the impressive expanse of internal space that was an important part of the granary’s special interest. While a previous permission for office use showed less intensive subdivision of the space, and use of glazed screens, it also involved insertion of a new staircore and lift to provide proper access and so the inspector was not convinced an office use would be less harmful to the listed building. In addition, marketing evidence demonstrated no feasible interest for offices and a speculative office scheme would not be viable. Concluding that everything pointed to the flats being the optimum viable use of the listed building and justifying the associated harm, the inspector allowed the appeal, in effect choosing the lesser of two evils.

This item updates DCP Section 27.2331 and 4.3712

Compare and contrast

First scenario (see 400-040-988). A householder is permitted to demolish a two-storey detached garage and to erect a two-storey rear extension at their house in the Kent, subject to a condition removing householder permitted development rights to avoid harm to the openness of the green belt. The council had concluded removal of the garage building would benefit openness and provided the very special circumstances for an inappropriate development. An inspector allows an appeal, varying the permission by deleting the condition, setting out that the GPDO does not restrict permitted development rights for dwellings in the green belt and NPPF green belt policies do not cater for the effects on openness of proposals that would be permitted development.

Second scenario (see 400-040-913). A householder is permitted to demolish a detached garage and store and erect a two-storey side extension and single-storey rear extension, subject to a condition removing Class E householder permitted development rights for further outbuildings to protect the green belt from inappropriate development.  An inspector dismisses an appeal to remove the condition, setting out that while a site in the green belt is not sufficient grounds alone for the removal of permitted development rights, as removal of the outbuilding was essential to make the extensions acceptable, this was an exceptional circumstance justifying a condition restricting permitted development rights and passed the PPG test of necessity.

Perhaps there is no right answer but it does seem that the more targeted withdrawal of permitted development rights in the second scenario had a more convincing justification, in the inspector’s planning judgement. Worth remembering.

This item updates DCP section 4.4261, 4.251, 12.642

Losing your cool

A reminder came recently in an appeal decision (see DCS No 400-040-884) concerning an application to install an air-conditioning system in a house in London. The appellants, like most of us, had clearly struggled to sleep during the hot weather last year and, looking to the future in a world of climate change, had decided to make life more comfortable going forward by installing an air-conditioning system in their house. The problem was, they lived in a listed building in a conservation area.

Unfortunately for the appellants, the inspector agreed with the council that the rooftop air-conditioning units would be an alien feature on the roof causing intrinsic harm to the listed building albeit they could not be seen. External pipework on an uncluttered rear elevation and roof would cause further harm, the inspector judged. Being a prime example of the residential architecture contributing to the special interest of the conservation area, it also followed that the proposal would also fail to preserve or enhance the character or appearance of the conservation area.

Undertaking the heritage balance, the inspector decided the purely private benefit of improved living conditions for the occupiers of the house did not outweigh the harm to heritage assets and dismissed the appeal.

It does make you wonder though, as we increasingly have to adapt to climate change extremes, will some compromises have to be made in our approach to our historic buildings to keep them suitable for future living?

Further information concerning the additionb of accretions to listed buildings can be found at section 27.3337 of DCP Online.of DCP Online.

None of your business!

The permanent gypsy and traveller site occupied by an intergenerational family had a permission restricted by condition to two mobile homes and two touring caravans. Having moved out of their mobile home to make way for the growing family of one of their adult children, the elder couple were now living in one of the touring caravans and wished to add another mobile home to the site for themselves.

The council took the approach that as the applicants had not demonstrated their Gypsy or Traveller status, the proposal fell to be assessed against stringent development plan policy generally restricting development in unsustainable locations in the countryside, rather than against the criteria of a specific gypsy and traveller site policy, and had refused permission. The council referred to the definition of gypsies and travellers at Annexe 1 of the 2015 national Planning Policy for Traveller Sites.

The inspector (see DCS No 200-011-938) pointed out, however, that the development plan did not require any such demonstration of gypsy status or need and the correct approach was to assess applications for new or extended gypsy or traveller sites against the specific policy, and to impose a relevant planning condition restricting the occupancy of the site to gypsies or travellers. Drawing parallels with applications for bricks and mortar housing, the inspector observed that “it is not as though any housebuilder is required to tell the LPA who exactly is intended to live in the houses”.

The inspector also clarified the correct definition of gypsy and traveller for the occupancy condition would be the extended definition post Smith v Secretary of State for Housing, Levelling Up and Communities [2022]. In Smith, the Court of Appeal ruled that excluding gypsies and travellers who had permanently ceased to travel due to old age or illness from the PPTS definition was unjustified and discriminatory.

In the inspector’s opinion, it was unjustified and unreasonable for the council to have insisted on proof of status in the first place, and additionally unreasonable to have persisted with the objection even after receipt of the appellants’ appeal documents, plainly demonstrating their traveller status, up until conceding this point at the start of the hearing.

Further information concerning the cessation of travelling and settled residence can be found at section 24.5332 of DCP Online.