DCP Blogs

Don’t know squat

Readers might be aware that Jeremy Clarkson has been moaning recently about his local council’s refusal of his proposal to convert a lambing shed at his Oxfordshire farm to a restaurant. One of his criticisms is that the planning officer from ‘red tape towers’ was swayed by local opposition. 

Well, that’s his opinion but you and I know better. As the chairman of the Planning Officers Society, which represents public sector planners, confirmed in an article on the planningresource website (28 April), the requirement on local authorities to make decisions on planning grounds means that “it doesn’t matter if one person raises an objection or 1,000 people raise an objection, it’s the quality of the objection that is important”.

Yes, and that is exactly how we have seen local objections treated by an inspector in a recent appeal against enforcement action directed at a beauty treatment room at a house in Plymouth (DCS Number 400-040-072). In this case some sixteen local residents and the local councillor had commented about the adverse impacts that they perceived had occurred as a result of the business use of the premises, the inspector reported. He explained, however, that ‘It is not the number of representations that have a bearing on a case but the materiality of the comments.’ In the case before him there was concern that the increase in vehicular activity during the day and extending into the evening, involving the regular arrival and departure of additional vehicles and the parking activity at the front of the property, created a level of disturbance uncharacteristic of an otherwise quiet cul-de-sac in a residential area where high levels of residential amenity were enjoyed. 

The inspector acknowledged that the level of activity might be noticeable throughout the business day and after normal business hours in the evenings. He considered, however, that the increase in traffic associated with the property would not be so significant in the context of the overall level of traffic from residents, visitors and delivery vehicles in the street, which was commonplace. He quashed the enforcement notice. 

Further information on the role of public opinion in the planning process can be found at section 3.9 of DCP Online. 

The Newbury principle

Following on from the appeal case we reported in Kafkaesque, in which an inspector attached conditions to a permission for a window which did not need planning permission, a more recent appeal case (DCS Number 400-039-904) appears to tell us that it is the appellant’s choice as to whether to abide by those conditions.  

This case concerns a caravan site in Northamptonshire. It isn’t necessary to go into all the details but have a read of the decision if you want to know the background. The main point relates to the Newbury principle. 

The inspector firstly set out that existing use rights may be taken away by a condition imposed on a planning permission for the development of land. She went on to explain, however, that in Newbury District Council v Secretary of State for the Environment [1981] the House of Lords held that such rights are not lost if the permission on which the condition was imposed was not actually necessary. Further, the owner is not precluded, by virtue of having sought and obtained such permission, from subsequently relying on pre-existing use rights, and ignoring conditions imposed on the permission.

Well, that seems fair. 

Section 4.4 of DCP Online concerns planning conditions.

Head for the hills

A recent appeal case (DCS Number 400-039-867) illustrates the practical implications of the climate emergency. In this case the appellant sought permission to retain a mobile home in the Worcestershire countryside for use only at times when her home in Stourport on Severn was flooded.

The inspector found that due to the location of the site occupiers of the mobile home would be heavily reliant on the private car for their day-to-day needs. He acknowledged the appellant’s intention that the mobile home would only be occupied during periods of flooding at her home in Stourport. He reasoned, however, that flooding can occur at any time and can result in property being inaccessible for prolonged periods, particularly if extensive clearing up or repairs are required. During this time, he noted, the mobile home would be occupied as a main residence when access to the necessary services and facilities would be required. Accordingly, he found that the proposal would not accord with development plan policy which required development to minimise the demand for travel and offer genuinely sustainable transport choices. 

The inspector noted the appellant’s willingness to accept a planning condition that would limit occupation of the mobile home to named individuals and when the River Severn reached a certain level at Bewdley gauge. He found, however, that this would not be enforceable given that, even after river levels had receded, depending on the severity of the flood the property might still not be accessible or habitable for an unquantifiable period of time. 

Whilst the inspector recognised the increased frequency of flood events which affected the appellant’ s home, and the cost that would be involved in moving the mobile home every year as and when required, he considered that it had not been sufficiently demonstrated that the specific temporary accommodation needs could not be met in another way. On the basis that an alternative could deliver similar benefits for the appellant, he determined that these personal circumstances did not outweigh the identified conflict with the development plan.

So avoiding the effects of climate change would exacerbate climate change. Oh dear.

Section 4.1113 of DCP Online concerns the implementation of climate change policy. 

The next generation

An inspector has sanctioned the retention of four static caravans at a gypsy site in the green belt in Hertfordshire, finding the interests of children not yet born to be a primary consideration (DCS Number 200-011-749).

Having found that the development constituted inappropriate development in the green belt, the inspector found that there was, however, a considerable unmet need for pitches in the district. He recorded that there were children residing in more than one of the caravans and considered that their interests would be best served by having a settled base, reasoning that if the appeal were to be dismissed it was likely that there would be no other alternative but for the families to exist  at the roadside. 

Furthermore, in the case of two of the pitches, although no children were currently on the site, the occupants were expecting children shortly. The Declaration of the Rights of the Child, the inspector recorded, states that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”. Similarly, he noted, Article 24 of the Convention on the Rights of the Child states that parties shall take appropriate measures “to ensure appropriate pre-natal and post-natal health care for mothers”. Therefore, although the children had not yet been born, he considered that their best interests were a consideration that should be given significant weight. He judged that the children would benefit from a settled base in their early life so as to experience consistent health care. Consequently, he determined that the benefit to the unborn children carried significant weight in favour of the appellant’s case. 

Further appeal cases where personal factors have weighed in favour of gypsy site provision can be found at section 24.536 of DCP Online.

Think of the children

An inspector has allowed the change of use of a butcher’s shop within close walking distance of a primary school in a Kent village to a hot food takeaway subject to a condition restricting its hours of operation to between 17:00 and 22:00 each day (DCS Number 400-039-632).

In so doing the inspector was clearly thinking of the children, deeming such a limitation necessary to ensure adequate protection of their health and wellbeing, given that the takeaway would then be open only outside school hours. 

So far, so good. However, the inspector noted that obesity rates within the region were higher than the national average and that controlling the proliferation of fast-food outlets was part of the council’s strategy to reduce the extent of obesity. In such circumstances, how is the condition going to protect the health and wellbeing of adults?

We need to take a broader view on this subject. 

National guidance on the location of hot food takeaways can be found at section 16.231 of DCP Online.

A lack of awareness

A Hampshire council has had appeal costs awarded against it after going against officer advice, an inspector finding that it had behaved unreasonably across several fronts (DCS Number 400-039-493).

The proposals in this case related to the change of use of three different properties from Class C4 HMO use to sui generis HMO use, the appellant wishing to secure permission for an additional occupant at each property. 

The costs decision makes grim reading. The inspector set out, firstly, that ‘While it is a fundamental principle of local decision making that a planning committee is not bound to follow the advice of its officers, there is a reasonable expectation that where this occurs it should show reasonable planning grounds for taking a contrary decision and produce sound, substantive and defensible evidence on appeal to support the decision in all respects.’ He found, however, that ‘That very clearly did not happen in this instance.’

There is too much to tell you about in this short space but, by way of example, the inspector noted that members were advised that as a previous inspector had found that the development would not result in inadequate communal living space, any subsequent inspector would be likely to follow the previous decision. He recorded, however, that ‘Unfortunately for reasons that are not entirely obvious, Members chose to depart from that very clear and cogent advice. The comments contained in the four bullet points under the heading “Member’s Comments” demonstrate a disturbing lack of awareness of basic planning procedure and law. The fact that the previous Inspector had found the amount of living space to be acceptable, was seemingly brushed aside on the basis that there was no change to the previous application and therefore no reason for a different decision. The logic of that comment is difficult to comprehend and clearly amounts to unreasonable behaviour.’

There is lots more if you can bear it. 

Awarding full costs to the appellant, the inspector concluded that the unreasonable behaviour threshold had been clearly passed.

Section 6.1 of DCP Online concerns costs awards. 

No going back

An inspector has declined to grant planning permission for five houses in Lincolnshire, finding that “the proposed development would result in unacceptable living conditions for the future occupiers, with regard to the shading of gardens from trees….”, despite being informed that a neighbour had removed a number of the trees along the boundary after the site visit (DCS Number 400-038-997).

The appellant asked for consideration be given to a further visit. The inspector reasoned, however, that the technical report - Sunlight Hours Analysis in Residential Gardens - had been compiled on the basis of the trees being present. Noting that there was no amended technical report that reflected the updated circumstances surrounding the appeal site the inspector went on to determine the appeal on the basis of the plans and information before the council at the time of their decision. 

We are not entirely convinced that the inspector should not have gone back, as requested, particularly given that the living conditions for future occupiers was identified as a main issue. After all, no technical report in the world is going to find that non-existent trees result in any degree of overshadowing. 

Section 4.135 of DCP Online concerns overshadowing. 

Following Finney

A recent appeal decision against the refusal of a section 73 application involving holiday lodges in Cornwall (DCS Number 400-039-452) tells us that different considerations apply according to whether it is the removal or variation of a condition that is being requested. 

Permission in this case had been granted for six units of disabled holiday accommodation lodges. A condition attached to the permission restricted their use to holiday accommodation only and prohibited use as a person’s sole or main place of residence. The inspector explained that the effect of removing the disputed condition would be to enable the accessible lodges to be used as permanent residential dwellings.

The inspector recorded that section 73 of the 1990 Act enables the development of land without complying with conditions subject to which a previous planning permission was granted. He also recorded that in Finney v Welsh Ministers & Others [2019], the Court of Appeal held that an application under section 73 may not be used to obtain a permission that would require a variation to the terms of the operative part of the planning permission, that is the description of the development for which planning permission had originally been granted. 

In the case before him the description of development on the original application referred to the development comprising the construction of six units of disabled holiday accommodation lodges. Accordingly, the council’s first reason for refusal maintained that lifting the disputed condition would alter the nature of development in a way that would materially differ from the approved permission and that, consequently, the planning application fell outside the scope of section 73. The inspector observed, however, that since the appeal was lodged, judgment in the case of Freddie Reid vs SSLUHC [2022] had been handed down by the High Court. He related that in the Reid judgment, an application under section 73 sought to remove an existing condition that restricted the use of 34 self-catering holiday units to holiday accommodation and not any other purpose. The council in that case argued that by seeking to remove the condition, it would enable the units to be used as permanent residential dwellings, which would be contrary to the description of development. 

The inspector explained that in the Reid judgment, however, the Court was not convinced that the removal of conditions gives rise to the same considerations as their variation or addition. The Court found that when a condition is removed, the operative part of the permission remains intact, albeit in an unconditional way. If the condition restricting the units to holiday accommodation were removed, the way the development could change would have nothing to do with the description. The Court held that what can be done with the use of the land may not be exhaustively written into the description but may arise by the operation of law - that is a lawful change of use to another purpose within the same Use Class. Therefore, it is the decision maker’s function to consider, as a matter of planning judgement, the planning merits of removing the condition. The inspector found that the Reid judgment was of direct relevance to the appeal proposal as it involved the removal of a condition restricting use of the lodges to holiday accommodation. 

The inspector concluded that the proposal could be determined under section 73, noting also that the council now accepted, in the light of Reid, that the first reason for refusal had been incorrectly applied.

Nonetheless, the inspector decided, given that the removal of the condition would allow the occupation of the buildings in an unrestricted way, that he needed to determine whether the potential use of the lodges as independent dwellinghouses would be contrary to the development plan. In this regard he found harm in respect of location, highway safety and provision of affordable housing, concluding that material considerations did not indicate that the appeal should succeed. 

Section 4.416 of DCP Online concerns the removal or amendment of conditions.

On a crusade

An inspector has turned down a proposal for a new country house in the West Midlands green belt, its design influenced by the Knights Templar, finding that it would not raise the standard of design generally in the area (DCS Number 400-039-437).

The proposal, the inspector reported, was predicated on paragraph 80 e) of the Framework. This supports isolated homes in the countryside, where the design is of exceptional quality, in that it is truly outstanding, reflecting the highest standards in architecture, and would help to raise standards of design more generally in rural areas; and would significantly enhance its immediate setting, and be sensitive to the defining characteristics of the local area. He noted, however, that paragraph 80 e) does not specifically refer to homes in the green belt. Nevertheless, he acknowledged that design of exceptional quality is capable of being an ‘other consideration.’ Indeed, paragraph 134 of the Framework states that significant weight should be given to outstanding or innovative designs which promote high levels of sustainability, or help raise the standard of design more generally in an area, so long as they fit in with the overall form and layout of their surroundings. 

On sustainable design, the inspector found that, given advances in renewable technology, the sustainable measures that would be incorporated into the building’s fabric would not be unduly innovative or outstanding. He considered that there would be nothing particularly novel about the use of solar gain, geothermal heat pumps, mechanical ventilation heat recovery, wood burning stoves using locally sourced wood, electric vehicle charging facilities and triple glazing, that would be said to drive up local standards.

With regard to the design concept, the inspector recorded that the scheme referenced Templar and Cistercian architecture re-imagined through contemporary styling. This drew upon the history and character of the small hamlet where the site was located and took its name from the Knights Templar. The design incorporated a rugged brick and stone base with a refined polished stone first-floor structure, with a floor plan of a truncated crucifix, intended to create a simplistic Cistercian-inspired architectural concept and form. The materials were chosen on the basis that they were appropriate to the relevant history and technology but also used in manners similar to the architecture immediately surrounding the site or within the hamlet. 

The inspector reasoned, however, that the proposal was a bespoke design response taking account of the history of the area and the surrounding context and therefore not capable of reproduction elsewhere. Therefore, he was not convinced that the proposal would raise the standard of design more generally in the area. 

See if we’ve got this right - on the one hand the design is criticised for failing to be innovative and on the other hand it is criticised for being too innovative? Poor old architect. 

Section 9.235 of DCP Online covers new country houses.

Railing against

An inspector has issued a certificate of lawfulness for railings around a roof terrace on a single-storey rear extension at a semi-detached house in Bedfordshire, finding that the construction was permitted development (DCS Number 400-038-955).

The inspector noted that the dispute revolved around which Class of Part 1 of the GPDO relating to operations affecting roofs was relevant to the development. Class B, he recorded, relates to the enlargement of a dwellinghouse consisting of an addition or alteration to its roof and Class C relates to any other alteration to the roof of a dwellinghouse. 

The inspector made reference to a notable court case, R (oao Barry Cousins) v LB Camden [2002], which concerned a roof terrace and railings. In that case, he related, it was held that “there is no question of these railings enlarging the external experience of no. 8. The position might have been different if a brick parapet wall had been constructed…but the iron railings are plainly within Class C of the Order and are not to be regarded as an enlargement of a dwellinghouse consisting of an addition or alteration to its roof under paragraph B.”

The railings on the appeal property, the inspector remarked, were thin and constructed of metal rather than more robust, bulky and solid brick parapets as in the case of  Richmond-upon-Thames LBC v SSSE and J A P Neale [1991] where it was held that Class B applied. He found that the structure did not as a matter of fact and degree provide any obvious enlargement of the external appearance of the dwellinghouse. He therefore considered that it was a reasonable judgement to consider the railings as ‘any other alteration to the roof of a dwellinghouse’ to which Class C applies. Accordingly, the development was permitted development which did not require planning permission.

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