DCP Blogs

Taking no pleasure

A north London council has had costs awarded against it for taking into account an objection to a single storey residential extension, the inspector pointing out that the objection from the neighbour had been made to an identical but separate prior notification application at the appeal property (DCS Number 400-039-219).

The inspector related that the application which was the subject of the appeal was a notification under Schedule 2, Part 1, Class A of the GPDO of the intention to use permitted development rights to build a single storey rear extension. Paragraph A.4(7), she continued,  states that where any owner or occupier of any adjoining premises objects to the proposed development, the prior approval of the local planning authority is required as to the impact of the development on the amenity of any adjoining premises. The council’s position was that prior approval was required because an objection had been raised. In its opinion, prior approval should be refused as the development would have an adverse effect on the amenity of neighbouring residents by reason of a loss of light and outlook. 

The inspector noted, however, that the council had taken into account an objection from the adjoining occupier that had been made on a separate prior notification application at the property. The reason given by the council for doing so was that two applications had been submitted at the same time for an identical development, arguing that it would have been unjust not to take it into account. The inspector acknowledged the council’s points that the neighbour had lodged objections to a number of planning applications submitted for similar extensions to the property, demonstrating their views about such a development, and that confusion might have been caused by the appellant submitting two identical applications close together. Nevertheless, the inspector found that the proposal represented a stand-alone prior notification application, separate from the other application, notwithstanding that the plans were the same. 

‘Accordingly’, the inspector concluded, ‘ while I take no pleasure from this… in the absence of any objections from any owner or occupier of any adjoining premises, prior approval as to the impact of the proposed development on the amenity of any adjoining premises is not required. The proposed development would be permitted development under the terms of Schedule 2, Part 1, Class A.1(g) of the GPDO.’

Are we all absolutely sure that this prior approval system is a good idea?

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

Feet on the ground

In arbitrating between the main parties about whether an appeal site near Bristol was within a village or not (DCS Number 200-011-632), an inspector emphasised that it was a matter that could only be assessed on the ground. 

The council maintained that the relationship between the site and the village could best be assessed and understood through looking at aerial views of the land, the inspector recorded. He considered, however, that ‘This would only be true if the local bird population were providing the assessment’, determining that the relationship could only be assessed on the ground by, in the case before him, an inspector exercising his planning judgement. 

The impression formed by the inspector was that the appeal site was an open green space within the village, concluding as a matter of planning judgement and taking into account all that was seen on the ground, that it was within the village. 

Section 9.1331 of DCP Online offers further guidance on this subject. 

A common misconception

A common misconception is that the term sui generis signifies a group comprising uses that do not fall within any other use class. In a recent appeal against the refusal of a certificate of lawfulness for the change of use of a car parking area in north Yorkshire to a car sales area the inspector explained that this is not the case (DCS Number 400-039-317).

The appellant’s argument, the inspector recorded, was that both car sales and the former car parking uses would be classified as sui generis land uses, and that accordingly there had not been a material change of use. 

The inspector explained, however, that sui generis is a Latin term that translates as ‘of its own kind’. In a planning context, he continued, the term is used to describe a use that does not fall within any of the collective use classes specified in Schedules 1 or 2 of the Use Classes Order. Therefore, it is incorrect to interpret sui generis as an individual use class of its own. Rather, it describes a variety of unique uses with material characteristics that distinguish them from the broad classes specified in the UCO.

Notwithstanding this matter the inspector decided that it was still necessary to consider whether a specific change of use from car parking to car sales would be material. For a material change of use to have occurred he considered that there must be some significant difference in the character of the activities from what had gone on previously, as a matter of fact and degree. It seemed to him that the change from use as a car park to a car sales compound would be noticeable by way of a reduction in the frequency of vehicles entering and leaving the site; also potentially in terms of the site appearing to be occupied by vehicles at all hours, and also by the type of signage and advertising deployed. Irrespective of whether the change would or would not result in more positive impacts on the surrounding area, he was in no doubt that the change of use would be noticeable and therefore significant and material. Accordingly, planning permission would be required to change from a car parking use to a car sales use.

A further example where an inspector has taken a similar view on materiality can be found at section 4.334 of DCP Online. 

How soon is now?

Immediately is not an enforcement period. 

An inspector has quashed an enforcement notice directed at unauthorised engineering and excavation works on a Lancashire farm because the requirement to ‘Cease all unauthorised activity immediately’ rendered the notice a nullity (DCS Number 400-039-113).

The inspector explained that a notice will be a nullity if it fails to specify a period for compliance, whether by complete omission or by failing to specify a period as such, perhaps by requiring compliance ‘immediately’. In R (oao Lynes & Lynes) v West Berkshire DC [2003], he recorded, it was held that ‘immediately’ is not a ‘period’ for the purposes of s173(9) of the 1990 Act as amended.  

Of course, fans of The Smiths already know this:-

'When you say it's gonna happen now ~ When exactly do you mean?'

Further appeal examples relating to the period of compliance can be found at Section 4.5361 of DCP Online.

How soon is now?

Immediately is not an enforcement period. 

An inspector has quashed an enforcement notice directed at unauthorised engineering and excavation works on a Lancashire farm because the requirement to ‘Cease all unauthorised activity immediately’ rendered the notice a nullity (DCS Number 400-039-113).

The inspector explained that a notice will be a nullity if it fails to specify a period for compliance, whether by complete omission or by failing to specify a period as such, perhaps by requiring compliance ‘immediately’. In R (oao Lynes & Lynes) v West Berkshire DC [2003], he recorded, it was held that ‘immediately’ is not a ‘period’ for the purposes of s173(9) of the 1990 Act as amended.  

Of course, fans of The Smiths already know this:-

'When you say it's gonna happen now ~ When exactly do you mean?'

Further appeal examples relating to the period of compliance can be found at Section 4.5361 of DCP Online.

Just desserts

An inspector has upheld an enforcement notice directed at a hot food takeaway in part of a dessert parlour in south-east London, finding that it would present a greater threat to public health than sweet treats (DCS Number 400-038-895).

The appeal property contained a three storey semi-detached double-fronted building, the inspector recorded. The hot food takeaway occupied less than a quarter of the building’s ground floor, the remainder being in use as a dessert parlour selling items including waffles, crepes, cakes, puddings, milkshakes and hot and cold drinks. Permission had been granted in January 2018 for the change of use of the ground floor from retail to a dessert parlour.

The property was located around 350 metres walking distance from the access to a secondary school. The inspector noted that London Plan policy states that development proposals involving hot food takeaway uses should not be permitted where they are within 400 metres walking distance from the entrances and exits of primary or secondary schools. The supporting text to this policy explains that obesity is one of the greatest health challenges facing the capital. The inspector remarked that hot food takeaways generally sell food high in calories, fat, salt and sugar, and low in fibre, fruit and vegetables. The London Plan, he noted, points to evidence that the regular consumption of energy-dense food from hot food takeaways is associated with weight gain and that such food appeals to children. It goes on to state that a wide range of health experts recommend restricting the proliferation of hot food takeaways, particularly around schools, to help create a healthier food environment. 

The inspector reasoned that although there might be similarities in terms of calorific content, there was no firm evidence to show that the type of items offered by the dessert parlour held a level of appeal for children comparable to that of hot takeaway food. Compared to the type of food items such as cakes, puddings and so on, which might to some extent be regarded as ‘treats’, he considered that items offered by a takeaway such as burgers and fries were highly likely to be consumed on a more regular, possibly day-to-day, basis. Additionally, the dessert parlour was primarily an ‘eat in’ establishment. He found it highly probable that children on a break or returning home from school would be more attracted to food which they could purchase and consume relatively quickly. This meant in practice, he continued, that compared to a takeaway the dessert parlour was less likely to be regularly frequented by children during or immediately following school hours. 

It followed that food offered by the takeaway was more likely to be associated with an increased risk of childhood obesity compared to that on offer in the dessert parlour, the inspector concluded.

Hmm. Readers might be interested to look back and compare this case with the one reported in Fat chance, in which the inspector highlights the potential for Class E premises to sell unhealthy food.

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

On the other hand

An inspector has quashed an enforcement notice directed at the use of a former shop in a south-east London town centre as a nail bar, pointing to recent change in the nature of high street retailing (DCS Number 400-038-845).

The inspector remarked that nail salons are well-established features of modern town centres, and that the services offered by such businesses attract customers who will also visit food or comparison shopping premises in the town centre, or who use other services located there such as food and drink outlets and banks. A nail salon, he held, can therefore make a positive contribution to town centre footfall, also finding that the characteristics and effects of the use of the appeal property as a nail salon were not dissimilar to those of other uses found within town centres, such as hairdressers. He determined that the nail salon could be viewed as an appropriate use alongside retail activity and that it was not unreasonable to regard it as being complementary to the retail function of the core frontage.

The inspector went on to note that recent amendments to the Use Classes Order have brought commercial, business and service uses including shops together in a new Class E. In his view, the services offered by the nail salon were not significantly different in character from the type of financial, professional or other services appropriate to a commercial, business or service locality now falling in Class E and which could occur within the core frontage without requiring further approval from the council. 

The inspector acknowledged that, at around 44 per cent, the proportion of non-retail uses in the core frontage had exceeded the 30 per cent threshold in development plan policy even prior to the nail salon commencing trading, whilst the amount of such uses in the wider town centre was currently closer to 48 per cent. He reasoned, nevertheless, that these figures did not necessarily show that there had been planning harm, noting that retail remained the most frequently occurring use throughout the core frontage and in the wider town centre. In addition, the council had not clearly explained how the loss of an individual unit to retail use further undermined the diversity of uses in the town centre, leading to a harmful erosion of its retail function. 

Moreover, the inspector found that the relevant development plan policy was of considerable age, pointing out that significant changes have occurred in the pattern of retail and other commercial uses since its adoption in 2004. He noted that the council had published a Town Centres Strategy in July 2019, which referenced the structural changes in town centres, largely due to continuing contraction in high street retail activity, which had led to them also becoming places to socialise and spend leisure time as opposed to purely shopping destinations. The TCS also pointed to recent town centre growth largely being driven by businesses providing experiences and services, such as barbers and cafes. The inspector decided that, although the TCS was not part of the development plan, as a recent reflection of the issues affecting the town centre it could be afforded some weight. On top of this, he considered that the challenging economic outlook for town centres generally in the aftermath of the COVID-19 pandemic, the continued growth of internet shopping coupled with an imminent threat of recession and declining household incomes, cast further uncertainty over their future. 

The inspector noted that the National Planning Policy Framework, which post-dated the development plan policy, advises that planning policies should promote the long-term vitality and viability of town centres by allowing them to grow and diversify in a way that can respond to rapid changes in the retail and leisure industries, allowing a suitable mix of uses and reflecting their distinctive character. He was not convinced that the strict focus on resisting most non-retail uses in the core frontage reflected the more positive approach set out in the Framework. In addition, he found that Planning Practice Guidance, which advises that a wide range of complementary uses can, if suitably located, help to support the vitality of town centres, including residential, employment, office, commercial, leisure/entertainment, healthcare and educational development, lent support to his misgivings in this regard. In all, he determined that only moderate weight should be given to the development plan policy. 

He allowed the appeal, finding that the nail salon contributed positively to the vitality and viability of the town centre.

Further information on the use class status of health and beauty salons can be found at section  17.2111 of DCP Online.

Hitting the buffers

An inspector has denied a certificate of lawfulness for the construction of a four-bedroom dwelling in Nottinghamshire because it would not be connected with the construction of a railway (DCS Number 400-038-801).

The inspector reported that the appeal site comprised part of a field which was adjacent to a railway line. The appellant stated that the previous known use of the land was as part of the Great Northern Railway in conjunction with a signal box and crossing. The site was understood to have been earmarked as part of a station under the Grantham and York Act 1847. 

The inspector recorded that the Great Northern Railway (Deviations between Grantham and York) Act 1847 enabled the Great Northern Railway Company to make certain alterations in the line of their railway as already authorised between Grantham and York and empowered it to deviate from the Line of Railway. The provisions of The Railways Clauses Consolidation Act 1845, except where repealed, altered or otherwise provided for, extended to the 1847 Act. He noted that Part 16 of the Railway Clauses Consolidation Act 1845 states that ‘... subject to the provisions and restrictions in this and the special Act, and any Act incorporated therewith, it shall be lawful for the company, for the purpose of constructing the railway, or the accommodation works connected therewith…they may erect and construct such houses…as they think proper.’

The inspector found no dispute that the appeal site was previously owned by the British Railway Board or that the provisions of the 1845 and 1847 Acts applied. However, he reasoned that, while the erection of houses on the land might be authorised by the 1845 Act, this was only for the purpose of constructing the railway, or the accommodation works connected therewith. There was no suggestion, he noted, that the proposed dwelling was for the purposes of constructing the railway, or that it would in any way be connected with the railway. Consequently, he determined, the appeal scheme was not authorised by the 1845 Act.

So to get this project back on track the appellant just needs to build a railway?

There is a section on LDCs at 4.301 of DCP Online.

Kafkaesque

A recent non-determination appeal is illustrative of the bureaucratic nightmare that is the current planning system (DCS Number 400-038-898):- 

‘The proposed scheme’ the inspector tells us ‘comprises the addition of a single window in the rear elevation of the residential building on the appeal site. Whilst the proposed scheme does not constitute development, as defined by the Town and Country Planning Act 1990 Act (the Act), there is nothing in the Act that precludes a planning application being made for such works. Similarly, the Act does not restrict local planning authorities from granting planning permission for proposals which do not constitute development.’

Having identified the main issue as being the effect of the proposed window on the character and appearance of the building, the inspector decided that, given the residential use of the building and the presence of windows being a characteristic of such a use, the addition of a single window in the rear elevation would not materially alter the appearance of the building. She concluded, therefore, that the proposed window would cause no demonstrable harm to the character and appearance of the building. She went on to impose conditions setting out the time limit for the commencement of the proposed scheme and listing the approved plans. For the window that didn’t need permission. 

Section 5.1 of DCP Online concerns the making and processing of planning applications. 

Petrol heads

An enforcement notice directed at the open storage of vehicles at a house in Kent has been quashed, an inspector deciding that the use was incidental to the enjoyment of the dwelling (DCS Number 200-011-519).

The appellant explained that of the 24 current vehicles owned by his family, nine of the 24 were his, four were his wife’s, two each were for his two daughters and seven for his son. He described how the family had always had an interest in cars and that they all used different cars for different purposes, including some of the newer ones for driving into the London Ultra Low Emission Zone for work. 

The council argued that the use of the cars, as detailed in the appellants’ list, was implausible and far-fetched, but the inspector noted that it had no evidence to counter it. He remarked that, indeed, the fact that the council’s witness had not even entered the site to ascertain the current situation for himself lent little credence to its case. That some vehicles might not have been moved for months and were covered in protective coverings did not contradict anything that the appellants raised in evidence in their list. He recorded that all of the 24 vehicles belonged to members of the family and most of them were used regularly. The few that were not were either being restored or were shown at car shows and comprised the family’s shared car hobby. 

The inspector found no evidence that gave any credence to the neighbours’ allegations that 30- 50 cars had been stored or dumped on the land, finding that the use that had occurred was simply the parking of the family’s various vehicles, which was clearly a purpose incidental to the enjoyment of their family dwellinghouse. Accordingly, he quashed the notice.

In coming to his decision, the inspector acknowledged and accepted the test in Emin v Secretary of State for the Environment [1989] that whether a use of a dwelling’s land is incidental to its enjoyment does not ‘rest solely on the unrestrained whim of him who dwelt there.’ However, he also accepted that what is incidental to the enjoyment of a dwelling must be reasonable in terms of its nature and scale, the size of the dwelling and its garden, and the disposition, character and hobbies of the occupier, as confirmed in Wallington v Secretary of State for Wales [1991]. That, he stated, was exactly what he had done in his assessment. Having taken into account the appellants’ list, the five-bedroom house, its occupation by the five adults in the household, and its large garden, he concluded that the family’s use of the land for parking their vehicles was reasonable.

Everyone needs a hobby.

The meaning of the term ‘incidental to the enjoyment of the dwellinghouse’ is explored at section 4.3445 of DCP Online.