DCP Blogs

It can always get worse

A recent appeal decision concerning a site in the metropolitan green belt in Hertfordshire (DCS Number 400-038-763) reminds us that development which might otherwise not have required permission can be enforced against if it facilitates an unauthorised use. 

The inspector in this case recorded that, at the time the enforcement notice was served, there had been a change of use of the land to a mixed use comprising forestry, leisure and for dog walking/exercise associated with a non-profit organisation. The stationing of a caravan and portable building used for purposes ancillary to the leisure use and the dog walking/exercise use had also occurred, along with the importation of materials used to form an access way and other hard standings, the erection of fences and a gate and the introduction of miscellaneous items used to facilitate the mixed use of the site. 

The appellant argued that a gateway, gate and track had always existed. The inspector explained that this argument could be construed as a hidden ground (d) appeal insofar as those matters had become immune from enforcement action through the passage of time. He pointed out, however, that in Murfitt v SSE & East Cambridgeshire DC [1980] it was held that where an enforcement notice is issued in respect of a material change of use, and works were carried out to facilitate the same, the notice may require that the ‘ancillary’ works are removed in order that the site is restored to its previous condition and the breach remedied. It follows from Murfitt, he reasoned, that an enforcement notice concerned with a material change of use may not only require the removal of works which would otherwise be immune, but also the removal of those which might have been permitted development, if they had not been constructed to facilitate the alleged use. It was further held in Somak Travel v SSE & Brent LBC [1987], he continued, that an enforcement notice could require the removal of works which did not amount to development at all but had facilitated an unauthorised material change of use. 

The inspector went on to find that the stationing of a caravan for overnight stays, and to provide shelter during inclement weather, facilitated the mixed use of the site. So did the portable building, which he saw provided toilet facilities. The access way and other hard standings facilitated access and parking in connection with the mixed use. The gate and perimeter fencing allowed the land to be used safely by the appellant’s daughter and for exercising dogs, whilst also preventing deer access. The internal fence provided screening and sound attenuation from road noise. Other miscellaneous items, such as a barbeque, tables and chairs, provided facilities for making food, sitting out and taking breaks. Accordingly, he found that these aspects clearly facilitated the mixed use of the site, and that failure to remove them would not, therefore, remedy the breach.

Further information on Murfitt and Somak can be found at sections 4.5351 and 4.5363 of DCP Online. 

Fat chance

A recent appeal concerning the refusal of planning permission for the change of use of an estate agent’s in east London to a hot food takeaway appears to indicate that the council has no more than a slim chance of addressing the problem of obesity amongst its residents through its planning powers (DCS Number 400-038-709).

The inspector noted that development plan policy resisted hot food takeaways where they were within 400m of the boundary of a school, youth centre or park. This policy sought to address rising levels of obesity, particularly among young people. Numerous schools, the inspector recorded, were in the area but were over 400m walking distance from the site. There were, however, two parks within 400m. He considered that, given the likelihood for young people to visit parks, an exclusion zone for takeaways near such spaces complied with policy aims. 

Nevertheless, the inspector reasoned that, given the Class E use of the site, it could be used as a shop, café or restaurant without the need for planning permission. Such uses could sell food deemed as unhealthy as that of a hot food takeaway, and this included confectionery, sugary drinks, snacks of limited nutritional value, and similar hot food choices to that of the proposal. The inspector further reasoned that these might be more attractive and accessible to schoolchildren, particularly given the likely lower price point when compared with a hot food takeaway. As such, he found no substantive evidence that the type of food sold at the proposal would be any more harmful to the health of schoolchildren than that which could be purchased if the site were to reopen as another Class E use. 

Although he determined that the proposal would not comply with the provisions of development plan policy, the inspector therefore decided that this was outweighed by the lack of evidence that it would cause greater harm to the health and wellbeing of local schoolchildren when compared with the lawful use of the site under Class E. He concluded that, overall, the site would be a suitable location for a hot food takeaway. 

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

History repeats itself

Paragraph 149 of the NPPF states that the construction of new buildings in the green belt should be regarded as inappropriate development, except in certain circumstances. One such exception is set out under Paragraph 149(c), which relates to the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building. The NPPF glossary defines an ‘original building’ as ‘a building as it existed on 1 July 1948 or, if constructed after 1 July 1948, as it was built originally’. 

The trouble with this is the inherent assumption that it is a relatively straightforward exercise to ascertain how a building was built originally. Given the habit of some dwellings to expand, contract and generally shape-shift over the decades, together with the fact that an outbuilding can potentially count as part of the dwelling, it’s actually not always that easy. 

A couple of years ago we published a blog post, Detective work, concerning an appeal against the refusal of permission for an extension to a green belt dwelling which was won on the basis of evidence provided by historic maps. Here we go again:

Permission has been granted at appeal for a rear extension to a dwelling in the Buckinghamshire green belt (DCS Number 400-038-603) on the basis of evidence provided by historic maps. 

In this case the council contended that plans dating from 1973 and 1978, taken together, indicated that the original building had been extended significantly, asserting that the previous extensions amounted to a 220 per cent increase in volume compared to the original dwelling. The appellant, however, provided historic maps dated 1879, 1947 and 1973. The 1879 map, the inspector noted, showed the dwelling with a significantly larger and less square footprint than that which was shown on the 1973 and 1978 plans provided by the council. He acknowledged that the 1947 map just showed a small square in the location of the dwelling but he found the accuracy of this map to be questionable given that the 1973 map again showed an almost identical layout to that indicated on the 1879 map. Overall, the inspector found the evidence provided by the council to be by no means conclusive in indicating the size of the original dwelling. Furthermore, he found that the historic maps indicated that the dwelling had always had a relatively large footprint (or at least since 1879). Although he found that it was not possible to ascertain the volume of the dwelling as it stood on 1 July 1948, he judged it very likely to be greater than that indicated by the council’s calculations.

The inspector concluded that the proposal would not result in disproportionate additions over and above the size of the original building, even when combined with the relatively significant extensions that already existed. As such, the proposal would not be inappropriate development in the green belt and he granted permission. 

Our sympathies lie with the council on this one. Whilst we recognise that local authorities often do keep old maps for use in relation to their many and various functions, should a planning officer really be required to search for them in the archives just in order to determine an application for a house extension?

Information concerning house extensions in green belts can be found at section 12.632 of DCP Online. 

A horizontal emphasis

In determining an application for prior approval under Part 20 Class ZA of the GPDO an inspector has cited a useful definition of ‘a block of flats’ (DCS Number 400-038-658).

Prior approval for the redevelopment of a former industrial unit in north-west London had been refused by the council on the grounds that the replacement building would comprise neither ‘a purpose-built detached block of flats’ or ‘a purpose-built detached dwellinghouse’, as required under Class ZA. 

The inspector recorded that there is no definition or interpretation of ‘a block of flats’ under Class ZA. As such, he determined that it was a matter of planning judgement for the decision-maker to decide whether, as a matter of fact and degree, the proposal comprised a block of flats. Nevertheless, the council had referred to an interpretation for the purposes of Part 20 of the GPDO, as set out in the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England)( Coronavirus) Regulations 2020. This states, the inspector noted, that: block of flats "means a building which is divided horizontally and consists of separate and self-contained premises constructed for use for the purposes of a dwellinghouse, and any ancillary facilities constructed solely for use by occupiers of the building". In the absence of any other definition, he had regard to this definition in determining the appeal.

The principal and defining characteristic for a block of flats, the inspector judged, is the horizontal division of self-contained accommodation, constructed for use for the purposes of a dwellinghouse. In contrast, the proposed scheme was arranged as a row of individual dwellinghouses, laid out so that each property was over two or three floors, with the individual dwellinghouses divided vertically. Each dwellinghouse had its own private garden to the rear and its own front door accessed from ground floor level. As such, he found that the arrangement was more akin to a terrace of dwellings than a block of flats. 

Dismissing the appeal, the inspector concluded that the replacement building did not comprise a purpose-built detached block of flats and, as such, the proposal would not be permitted development under the provisions of Schedule 2, Part 20, Class ZA of the GPDO.

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

Twice as nice

In Sevenoaks DC v SoS and Dawe 13/11/97 it was held that a garage was capable of being treated as part of a dwelling even though physically separated from it. However, not all outbuildings need to be counted in every case, it being a matter of fact and degree. 

We can’t tell you the background, but it appears that we now have two similar judicial rulings on this subject: a recent appeal decision (DCS Number 400-038-475) citing Warwick DC v SSLUHC, Mr J Storer & Mrs A Lowe [2022]. 

DCS Number 400-038-475 concerns the refusal of planning permission for a single-storey garage in the green belt in Hertfordshire. The inspector recorded that the Framework establishes that the construction of new buildings in the green belt should be regarded as inappropriate, subject to a number of exceptions as set out in Paragraph 149. One such exception is the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building. 

With regards to this, the inspector was guided by Warwick DC v SSLUHC etc where it was held that the definition of extensions to an existing building is not confined to physically attached structures. Rather, it is a matter of fact and degree as to whether a proposed detached building can be considered to be an extension of an existing building. 

In the case before the inspector the proposed garage would be located approximately 20m from the dwelling at the site. The inspector observed that this part of the site, although clearly associated with the dwelling, was nevertheless demarcated from the main residential garden of the property, finding it to comprise a separate parcel of land.

In such circumstances, the inspector considered, having regard to Warwick DC v SSLUHC etc, that it would not be reasonable to conclude that a detached building on land separated from the original building could reasonably be considered to form an extension to such a building. 

Dismissing the appeal, the inspector concluded, accordingly, that the proposed development would not meet the criteria for the exception set out at Paragraph 149(c) of the Framework, or any of the other exceptions, and would therefore constitute inappropriate development in the green belt. 

Further information concerning green belt garages can be found at section 12.1341 of DCP Online. 

Keep to the script

In a recent decision (DCS Number 400-038-556) an inspector examined the nature of Class C1 hotel use, deciding that the appeal should be allowed notwithstanding the council’s suspicions that, in fact, the intention was to provide five residential flats. 

This case involved the refusal of planning permission for “Change of use from Sui Generis (Shop and Office) to C1 Hotel” in a town in Cambridgeshire. The accompanying plans and information, the inspector noted, revealed that the hotel use was to comprise five guest suite units. 

The council’s suspicions were raised on the basis that: the proposed floorplans appeared to show a layout of five one-bedroom flats, each with its own private external access door, open plan lounge/kitchen, bedroom and bathroom; interconnecting doors were provided between each of the flats which would allow guests to enter each other’s private space; there was no main reception; and….er….the council’s building control team had received a Building Regulation application for the conversion of the building to four residential flats and a bedsit. Accordingly, the inspector did not consider it unreasonable of the council to have formed the view that the intended purpose of the scheme was for five residential flats and not hotel accommodation. 

The appellant argued, however, that not all hotels offer accommodation based on a one-room format, and the inspector saw no reason why some hotels would not offer larger guest suite accommodation with facilities such as a lounge/kitchen to accommodate an extended stay. As a consequence, he was satisfied that hotels are capable of operating in many formats and not just that of individual rooms. In addition, the appellant explained that the proposed hotel use would be linked to a local wedding venue, suggesting that the scheme should be considered an annexe. Again, the inspector saw no reason why the scheme could not be used in this manner in conjunction with another Class C1 hotel use elsewhere (which could include the said wedding venue if this were a hotel) and as a consequence, he was satisfied that the development was, at the very least, capable of falling within the scope of a Class C1 hotel use. 

Nevertheless, in view of the floorplan layout and accommodation characteristics, the inspector recognised that it would be easy for the subsequent use of the five hotel guest suite units to stray outside of the lawfully permitted use into that of five residential flats. For the avoidance of doubt, he emphasised that his decision should not be interpreted by the main parties as allowing any of the proposed hotel guest suite units to be occupied as permanent residential flat accommodation.

Further information concerning the nature of Class C1 hotel use can be found in section 4.3333/1 of DCP Online. 

Wobble room

On 5 February 1930 Albert Einstein wrote a letter to his son Eduard which included the advice that “Beim Menschen ist es wie beim Velo. Nur wenn er fährt, kann er bequem die Balance halten”. This is usually translated as “Life is like riding a bicycle. To keep your balance you must keep moving". The celebrated physicist ought to know, and it was a matter recognised in a recent appeal (DCS Number 400-037-925). 

This appeal concerned the conversion of a house in north London to two flats. The appeal turned on whether the proposal provided appropriate cycle storage facilities. London Plan Policy, the inspector noted, seeks that cycle parking should be fit for purpose, secure, well-located and in accordance with the minimum standards of provision as well as designed and laid out in accordance with the London Cycling Design Standards (LCDS). The inspector recorded that the LCDS state that a typical cyclist in motion requires 1 metre width including ‘wobble room,’ but that larger cycles may require up to 1.3 metres including ‘wobble room.’ 

The inspector noted that the proposed cycle storage would be located within the rear garden which was accessed via a private passageway to the side of the dwelling. According to the appeal documents this would at its narrowest point be approximately 65-70 centimetres wide for a distance of 11 metres. He concluded that the proposed accessway to the cycle storage could not be considered convenient or wide enough for current and future occupiers, and dismissed the appeal.

The subdivision of dwellings is covered at section 11.1 of DCP Online.

All alone

In determining an appeal against an enforcement notice which required the use of a property in south-east London as seven flats to cease (DCS Number 200-011-349), an inspector explained that the four-year period for immunity applied to each flat rather than to the whole building. 

The inspector recorded that the case of Bansal v SSHCLG & LB of Hounslow [2021] related to the use of a building as two flats. Taking account of the conclusions of that judgment, he ruled that each flat in the appeal before him should be considered an individual planning unit and that any four-year period would apply to each flat rather than the building as a whole. This suggested, he continued, that he could find that one or more of the seven flats had become lawful. 

Having examined the evidence relating to the occupation of the flats he found that none of them could have achieved the requisite four-year period for occupancy to achieve immunity from enforcement. He therefore upheld the notice. 

A summary of Bansal can be found at section 11.151 of DCP Online.

Unfinished business

In determining an appeal against an enforcement notice requiring the demolition of a partially built garage at a dwelling under construction in the Worcestershire countryside (DCS Number 200-011-382), an inspector has pointed out that permitted development rights do not exist before the substantial completion of the dwelling. 

The appellant argued that the garage would be permitted development under Class E, Part 1 of Schedule 2 to the GPDO. The inspector noted, however, that in R (on the application of) Townsley v SSCLG [2009] the court held that, in a case involving permitted development rights in connection with a dwellinghouse, such rights are not available until a “building…has already been constructed and is…a dwellinghouse”; it is “not until it becomes a dwellinghouse that the GPDO can be used.” He acknowledged that this requirement merges into the limitations on development under Class A, but held that it is a freestanding requirement under the other classes.

The inspector explained, moreover, that the underlying logic is that the dwellinghouse does not exist as such until it has been substantially completed. Applying recognised case law, he continued, the distinctive characteristic of a dwellinghouse is its ability to afford to those who use it the facilities required for day-to-day private domestic existence. He found that was clearly not the case in the situation before him as the dwelling was not substantially complete. Accordingly, he concluded, there were no permitted development rights for development within the curtilage of a dwellinghouse when a dwellinghouse was under construction and they remained absent until the dwellinghouse had reached the stage of being substantially complete, as a matter of fact and degree.

Section 4.3421 of DCP Online covers Part 1 development within the curtilage of a dwellinghouse. 

Shepherds watched

An inspector has upheld an enforcement notice requiring the removal of a shepherd’s hut from a farm in the south Yorkshire green belt, finding that it was not designed for agricultural purposes (DCS Number 400-038-169).

The inspector noted that the shepherd’s hut was advertised as commercial holiday accommodation on the Airbnb website, and that it was occupied by guests at the time of his site visit. 

The appellant asserted that under the GPDO Part 6(A), the hut could be erected anywhere on the farmyard. However, the inspector saw no evidence that it would meet the limitations in Part 6(A) of the GPDO. Moreover, he pointed out, the reference to Class A.1(c), does not permit development if it would consist of, or include, the erection, extension or alteration of a dwelling, and for the purposes of Part 6 it does not permit the provision of a building, structure or works not designed for agricultural purposes. 

The inspector decided this was not a realistic or genuine fallback position, and gave it no weight, concluding that the development was inappropriate in the green belt and harmful to its openness. 

Interesting. What if it were only let to shepherds?

The detailed requirements of Part 6 are set out at section 4.3425 of the GPDO.