DCP Blogs

A matter of interpretation

An inspector has rejected the change of use of former solicitors’ premises in Hampshire to two flats under Part 3 Class MA of the GPDO, having found that they had not been vacant for the requisite period (DCS Number 400-037-997).

The inspector recorded that Part 3, Class MA.1(1a) of the GPDO states that development is not permitted by Class MA unless the building has been vacant for a continuous period of at least three months immediately prior to the date of the application for prior approval. The key point of contention between the parties, he noted, was whether renovation works which had taken place amounted to a cessation of the vacant state of the building. Since there is no definition of vacant within the GPDO he took the ordinary meaning from the dictionary, which is empty. 

The inspector acknowledged that the building was not being used as an office, but reasoned that it was not empty. To this end, he found no evidence before him demonstrating that an assessment of vacant for the purposes of the GPDO should exclude renovation works, and that it should relate only to whether the building was in beneficial use. He determined that  the proposal would not be permitted development under Part 3, Class MA.1(1a) of the GPDO.

Sometimes it’s down to a matter of interpretation but we are not entirely convinced that renovation works should not be disregarded in this context.

Section 10.316 of DCP Online covers the new commercial to residential change of use rights under Class MA.

Shining a spotlight on solar energy

Whilst recognising the need to secure energy security and reduce energy costs, an inspector has denied planning permission and listed building consent for the installation of solar panels on the roof of a Suffolk cottage (DCS Number 400-037-898).

It is indisputable, the inspector commented, that climate change is occurring and consequently there is an urgent need for action as set out by the Intergovernmental Panel on Climate Change. He noted that, as a result, the council had declared a climate emergency, with an intention to be carbon neutral by 2030. He recognised that the provision of solar panels on domestic properties in the way proposed would facilitate the production of renewable energy and thus reduce carbon emissions. The appellants’ wish to actively reduce their own carbon emissions was therefore commendable. Moreover, he remarked that the recent events in Ukraine have shone a spotlight on the need for energy security and the desirability of reducing energy costs. He found that the modest provision of renewable energy in the way proposed would therefore be a public benefit of moderate weight in favour of the proposal. 

Nonetheless, the inspector found that there would be harm to the significance of the listed building. Such structures, he reasoned, are a finite cultural resource and make up only a small proportion of the built environment. As a result, the Framework requires that great weight is given to their conservation. He considered that the significant harm that would arise from the proposal would not be outweighed by its moderate public benefits. Accordingly, there would be a conflict with Paragraph 200 of the Framework as harm to a designated heritage asset would not have clear and convincing justification. 

The appellants drew attention to a letter from the Minister of Business, Energy and Industrial Strategy. This indicated an intention to review and update the planning framework for listed buildings, so they have the right energy efficiency measures to support zero carbon objectives. The minister further set out an intention to ensure the significance of listed buildings is conserved while allowing, where appropriate, sympathetic changes to support their continued use and address climate change. However, the inspector did not read this as a clear statement of policy that confirmed the benefits of installing solar panels would outweigh harm to a listed building’s significance. It is a matter of judgement, he ruled, deciding that the balance in the case before him was towards a dismissal of the proposal given the extent of harm that would be caused. 

Further appeal examples relating to solar panels on listed buildings can be found in section 27.2325 of DCP Online.

A chicken coup

We have been talking lately about changes to the description of development: in the appeal case concerned in Common practice the council’s unilateral change to a description of development resulted in an award of costs against them, and in And anyway we pointed out that inspectors sometimes do exactly the same thing. 

Perhaps we shouldn’t brood on this subject but another appeal case (DCS Number 400-037-896) tells us that maybe a degree of latitude ought to be permitted. The description of development in this case included ‘a chicken coup’. Now, we fully understand why oppressed chickens might plot to overthrow the ruling elite but, had the inspector granted permission, we feel certain that it would have been for a chicken coop.

Further information about the acknowledgement and registration of planning applications can be found at section 5.151 of DCP Online.

Give a dog a bad name

A reporter has decided that the name of a listed pub in West Lothian does not form part of its special historic interest (DCS Number 400-037-797), despite significant local opposition to its change.

An appeal had been made against the refusal of listed building consent for new signage. The reporter clarified at the outset that the application was not to change the name of the business but for consent to apply new signs to a listed building that would include the new name. Consequently, she explained, the appeal process was not able to consider the reasons for the change of name or the merits of the proposed new name. 

The reporter carefully considered submissions from members of the public and local community groups regarding the story of a black bitch (depicted as a species of hound) from which the pub took its name, and its importance to the history and identity of the town. She noted, however, that, while the story was undoubtedly of historic and cultural importance to the town it was evident that the listed building was erected after the event took place.  

She acknowledged that the strong support for the retention of the existing pub name due to the importance of the historic event it commemorated was evident within the representations submitted by the local community. Nevertheless, she determined that the motivations behind the proposed name change, the history of the brewery business organisation and its actions when carrying out alterations to other properties in the town were not relevant matters in the appeal. She confirmed that she could only consider the effect on any features of special architectural or historic interest which the listed building possessed, or the effect on the conservation area. 

The reporter concluded that the proposal would preserve the features of special architectural or historic interest of the listed building and would also preserve the character and appearance of the conservation area.

External alterations to listed buildings are considered at section 27.232 of DCP Online. 

Pour on water, pour on water

An inspector has poured water on an appellant’s suggestion that a sprinkler system would compensate for the inaccessibility to fire engines of a proposed new house in Berkshire (DCS Number 400-037-678), also determining that it would not be appropriate to leave the matter of fire safety until Building Regulations stage.

The principal parties agreed that the access track was around 70 metres long, and that its width was typically 2.5 metres, although that decreased to around 2.4 metres at one point.

The Royal Berkshire Fire and Rescue Service had raised no objection to the scheme, but observed that it would comment on the suitability of the access at Building Regulations stage. However, it also stated that if the access did not fit the required dimensions at Part B5 of the Building Regulations, then no fire appliance would be able to reach the new dwelling. The council referred to the Manual for Streets which in turn references the Building Regulations’ requirements for access and facilities for the Fire Service. Part B5 of the Building Regulations, the inspector recorded, states that there should be a minimum carriageway width of 3.7 metres between kerbs, and that below this there should be consultation with the Fire Safety Officer. It continues that the access route could be reduced to 2.75 metres over short distances, provided that the pump appliance can get to within 45 metres of dwelling entrances.

Summarising the situation, the inspector recorded that the distance from the road to the proposed dwelling would be well over 70 metres and the access was significantly below the width recommended by the Manual for Streets. In addition, according to the council’s research, the smallest vehicle used by the Royal Berkshire Fire and Rescue Service was 2.55 metres wide. 

From the evidence before him the inspector was therefore not satisfied that an appliance could get to within 45 metres of the proposed dwelling. It was clear to him, notwithstanding the representation by the Fire Service, that the matter needed to be considered at the planning stage. He acknowledged that the proposed sprinkler system might allow for a longer response time, but had significant concerns that fire appliances would not be able to get to within a suitable distance of the proposed dwelling in order to tackle a fire; and the proposed sprinkler system would not adequately mitigate against the significant shortcomings of the access. 

Additionally, a 2.45 metre-wide ambulance would not be able to reach the dwelling. 

The inspector concluded that the dwelling could not be appropriately accessed by emergency vehicles.

Section 4.1542 of DCP Online concerns fire prevention. 

And anyway

And anyway, by way of a postscript to Common practice, it’s not unheard of for inspectors to change the description of development themselves. For example, (DCS Number 400-037-643):-

“I have changed the description of the development to more accurately represent the works being carried out.” 

Hmm.

Common practice

A householder in Essex has been awarded partial costs of an appeal after the council unilaterally altered his description of development (DCS Number 400-037-614).

The applicant’s cost claim was made on the basis that the council changed the description of development to include reference to development that was not part of the proposal, and which led to the third reason for refusal. The inspector agreed that the council’s description suggested that a balcony at the first floor side was new, when it was clear that the plans showed alterations to an existing dormer window that included a balcony. He therefore found the council’s description to be somewhat misleading. 

“Whether or not it is a common and necessary practice for descriptions of development to be amended,” the inspector said, “the PPG is clear that a local planning authority should not amend a description of development without first discussing any revised wording with the applicant or their representative. Had this occurred, the error in the description could have been resolved.” He therefore found that unreasonable behaviour with respect to the procedural handling of the case by the council had been demonstrated.

The inspector did acknowledge that, according to the applicant, the proposal did not include any change to the existing side dormer and balcony. However, both the proposed floor and elevations plans clearly indicated an intention to extend the existing side dormer window forwards. It was therefore right that the council considered the proposal before them, he ruled. Nonetheless, he found that it was the misleading change to the description, misinterpretation of the plans, failure to consider supporting information and failure to conduct a site visit, which led to the proposed alterations to the dormer being wrongly considered as an entirely new addition.

The inspector accepted that there were other reasons for refusal and that an appeal might not have been avoided but awarded the costs of the appeal proceedings, limited to those incurred in contesting the council’s third reason for refusal. 

Strictly between ourselves we’re feeling a bit sorry for the council. They’re worked off their feet, they weren’t able to make a site visit due to a pandemic, and if you saw some of the descriptions of development given by applicants ….. well.

Further information about the acknowledgement and registration of planning applications can be found at section 5.151 of DCP Online.

The good life

Allotments certainly have a different character and appearance from farmland but do they still count as agriculture? Yes, they do: an inspector has just granted a certificate of lawfulness for an allotment in Staffordshire, finding that no change of use from agriculture had occurred (DCS Number 400-037-552).

The appellant sought confirmation that the use of land to the rear of her property as an allotment would be lawful on the basis that the authorised use of the land was agriculture and the land would remain in agricultural use as an allotment. The council, however, maintained that the intensity of the proposed use could not be considered to be agriculture; it would amount to a material change of use to residential, which would be development under Section 55(1) of the 1990 Act and would require planning permission.

The inspector saw that the land formed part of a wider strip which extended either side of the site. The appellant intended to use the land as an allotment and had submitted a plan showing a chicken run, beds for fruit trees, wildflowers and vegetables and an area of permanent rye grass, along with an estimate of productivity for 2021. 

The inspector identified the main issue as being whether the proposed allotment would be an agricultural use and thus lawful. ‘Agriculture’, she recorded, is defined in Section 336 as including but not necessarily being limited to a list of activities - horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and “agricultural” shall be construed accordingly.

The appellant pointed to the judgment in Crowborough Parish Council v SSE & Wealden DC [1981] which concerned the proposed use of agricultural land for allotments. The secretary of state had taken the view that "allotments" were not "agriculture", as defined in Section 290 of the 1971 Act due to the subdivision of the land and the increase in the number of people working it. The court, however, held that whilst it was correct to look at Section 290, it was necessary to consider if allotments could be included in any of the activities set out in that definition. In the court's view, what is done on allotments could be said to be "horticulture", "fruit growing", perhaps even "seed growing". It was ruled that allotments fell within the definition of agriculture in Section 290(1) of the 1971 Act.

The inspector noted that the definition of agriculture is unchanged since that time and found the facts of the case to be very similar to those before her. The proposed use included the growing and cultivation of fruit trees and vegetables and for keeping hens for eggs, she recorded, all firmly within the definition of agriculture. In addition, the less intensively managed areas, such as the rye grass and wildflowers, was meadow land. She considered that the use described could be reasonably considered to be agriculture. 

The council argued that the land use would be merely an extension of the domestic garden area, but the inspector found no suggestion that the land would be used for residential purposes, which would be characterised by, for example, a maintained lawn and flower beds, formal or informal seating areas, areas for drying washing, patios/decking, play equipment and ornamental features.

The inspector concluded that the proposed use of the land as an allotment would fall within the definition of agriculture provided by Section 336 of the 1990 Act. Thus, the use would not be development under the provisions of Section 55(2)(e) and planning permission would not be required. Consequently, it would be lawful. 

There is further information on allotment use at section 22.4 of DCP Online.

A new start

An inspector has declined to confirm that the occupation of an agricultural dwelling in Cornwall in breach of its occupancy condition was lawful, due to a nine-month break in the requisite ten-year period to acquire immunity from enforcement (DCS Number 400-036-653). In so doing he noted a number of court cases which are of general relevance to the calculation of the ten-year period. 

In the case before the inspector the area of dispute between the council and the appellant lay in a period of nine months during which the property was unoccupied. The council’s position was that this represented a significant interruption of the breach. Thus, it argued, the breach ceased and then recommenced after the nine months. In this situation the ten-year period in which enforcement action could be taken started again. The appellant’s position, on the other hand, was that the break was de minimis and the breach was continuous.

Various court cases were cited by the parties, all relating to the question of continuity of a breach of planning control. Thurrock BC v SSETR & Holding [2002], the inspector noted, sets out that a use can only become lawful if it continues throughout the relevant immunity period, such that the planning authority could have taken enforcement action at any time. He explained that a judgement has to be made on whether a break in the breach is de minimis or significant to the point where the breach ceases. A similar judgment was issued in Nicholson v SSE & Maldon DC [1998] that, together with that in Ellis v SSCLG [2009], set out that a claimed failure to comply with a condition must be in existence at the time that the application for a certificate is made.

The judgment in North Devon DC v SSE & Rottenbury [1998], the inspector continued, contains the passage "Clearly, continuous physical occupation is not required for there to be occupation in breach. Beyond those few comments, it would not be appropriate to indicate any guidelines. This question is quintessentially a question of fact [and] degree to be considered in the light of all surrounding circumstances, including the length of physical occupation and any other indications or evidence of continuing occupation, despite the physical absence of the occupiers." 

The case of Basingstoke and Deane BC v SSCLG & Stockdale [2009], the inspector recorded, related to a breach of an agricultural occupancy condition. The judgment identified that the correct question was whether there had been what could properly be regarded as a breach of the condition over the whole of the ten-year period, whether or not there was anyone in physical occupation during any particular part of it. In that case there had been a clear breach for some time, namely use by persons that were not agricultural tenants. It was held that a gap during which refurbishment took place, in order to make the dwelling more attractive so that the breach could continue, was a period during which the breach actually continued. If enforcement action had been taken during the period of refurbishment, it would have succeeded. The inspector explained that the judgment turned on the facts of the case, emphasising the importance of every case being fact sensitive. He found that the underlying lesson from all of these cases is that determining whether a breach has been continuous is a matter of fact and degree. 

In another case, R (Ocado) v Islington LBC [2021], the judge undertook a thorough review of the law in this area. Amongst his findings were that if a condition has been breached continuously for any ten-year period, without significant interruption, the breach will be lawful thereafter, unless that lawful right has been lost through some event sufficient to terminate it. In a position contrary to Ellis and Nicholson, he stated that the breach does not have to be continuing at the date of an LDC application to become lawful.

The inspector found obvious parallels between Basingstoke and the case before him. The break in the physical occupation of the property in Basingstoke was 12 months. The court was given evidence to show that during this period the owner arranged for persons to do the work, the work was undertaken, and the property marketed. It found that the purpose of the work was to further the breach of condition that had occurred prior to the break, which was the intention of the owner.

The inspector accepted that, at nine months, the break was shorter than that in Basingstoke. The appellant also argued that this equated to just over five per cent of the period between the start of the breach and the date of the application being made. “This might well be the case”, said the inspector, but to his mind this was not the relevant metric of assessing the break. The correct way, he ruled, is to assess the length of the duration in its own right, rather than as a percentage of the time that a breach has occurred. 

The judgement in Basingstoke, the inspector reasoned, demonstrates that the appellant needed to show why the break was required at the appeal site. That is to say, show what activities and work occurred during the nine months, and that the council was able to take enforcement action throughout the relevant period. He did not doubt that it was the appellant’s intention to continue to breach the condition but found nonetheless, that the evidence put forward in respect of repairs and renovation was sparse, and what had been provided lacked precision and was ambiguous. 

The inspector concluded that there had been a break in the breach of the condition that was greater than de minimis. As such, the council would not have been able to take enforcement action during the break. Therefore, the agricultural occupancy condition attached to the planning permission had not been continuously breached for ten years, and an LDC was denied. 

Section 4.535 of DCP Online concerns immunity from enforcement.

A conflict situation

An inspector has granted reserved matters approval for the redevelopment of a former care home in Greater Manchester with seven dwellings, overturning the council’s finding that the access details conflicted with that approved under the outline permission (DCS Number 400-037-259).

The council had refused to validate the application for reserved matters, contending that there were significant material differences between the details of access as approved at the outline stage and those that had been provided in connection with layout as part of the reserved matters submission. 

The inspector recorded that the Town and Country Planning (Development Management Procedure) (England) Order 2015 as amended, sets out in Article 2(1) definitions of “access” and “layout” in relation to reserved matters. “Access” is described in the Order as meaning the accessibility to and within the site, for vehicles, cycles, and pedestrians in terms of the positioning and treatment of access and circulation routes and how these fit into the surrounding access network. Meanwhile, “layout” is described as being the way in which buildings, routes and open spaces within the development are provided, situated and orientated in relation to each other and to buildings and spaces outside the development. He noted that Article 5(3) of the Order provides further clarity in that where access is a reserved matter, the application for outline planning permission must state the area or areas where access points to the development proposed will be situated. 

Case law, in Heron Corp Ltd v Manchester City Council [1978], the inspector noted, states that when approving a reserved matter, it must be within the ambit of the outline permission and not modified, or depart from it in any significant respect. Further,  R. v Hammersmith and Fulham London Borough Council and Another [1986] and R. v Bolsover District Council [1995] held that this is a matter of fact and degree for the planning authority to determine based on its own judgement.

There was no suggestion, the inspector observed, that the access point to the development was not in accordance with the outline permission. However, the council highlighted seven changes between the approved and submitted drawings, encompassing changes to the siting and alignment of the carriageway within the site, variation of the shape of the cul-de-sac turning head, amendments to the siting of a footpath, and a series of alterations to access points to various plots. Accordingly, the council concluded, as a matter of fact and degree, that the submitted reserved matters went beyond the scope of the original outline approval.

The inspector considered, however, having regard to Article 2(1), that there must inevitably be a certain degree of overlap between the consideration of the two reserved matters, particularly with regards the assessment of circulation routes as required by “access”, and routes as required by “layout”. 

The council argued that circulation routes must also include internal access to and from the plots in addition to the access to the highway network. The inspector reasoned, however, that if such an approach was taken and access within the site was set as rigidly as indicated, then this would for all intents and purposes remove the ability to fully consider layout in accordance with the definition set out in Article 2(1), and also any flexibility that might be required in the approval of the other reserved matters. Furthermore, he noted that in the instance before him a rigid approach would also have inadvertently had the effect of restricting the operative part of the outline planning permission, as granted. With a quantum of up to seven dwellings allowed rather than a fixed quantum, amendments to the approved access would inevitably have had to have occurred if fewer than seven dwellings had ultimately been pursued at reserved matters, thus emphasising the need for flexibility in considering the reserved matters.

The inspector was satisfied that the general arrangement of the access would not be materially different in the overall context of the proposed development. He concluded that the submitted reserved matters did not conflict with the ambit of the outline planning permission which had been granted, having considered matters of access.

There is a section on the scope for developer changes within 5.1323 of DCP Online.