DCP Blogs

It’s no party

An inspector has upheld an enforcement notice directed at the use of a semi-detached house in Greater Manchester as an airbnb, being unconvinced by the appellant’s claim that noise monitoring software would adequately protect neighbours’ living conditions (DCS Number 400-037-324).

The inspector noted that occupancy levels at the weekend were between seven and ten people on average but that there was the potential to accommodate 13 people. The main reason for the issue of the enforcement notice related to noise, antisocial behaviour and disturbance. 

The appellant argued that the house was fitted with noise monitoring software which recorded any sounds within and around the property in decibels, and live recordings which were linked in real time to his mobile phone by way of graphs. In the unlikely event of there being any noise over and above the set level of 70db for ten minutes, messages and an alarm were automatically sent to him to enable action to be taken. He claimed that this was an effective tool to prevent potential noise disturbance from guests such as loud music or parties and reflected the considered approach taken by him to ensure that the use of the property as short-term let accommodation did not result in any unacceptable impacts upon the amenity of occupiers of neighbouring properties.

The inspector found, however, that the need for the police to have been involved at various times meant that the use of the property as a short-term holiday let had caused major material planning concerns and that the character of usage had been significantly different from use as a dwellinghouse for a normal family. As a matter of fact and degree, he considered that there had been an unacceptable change of use from a single dwellinghouse to a sui generis use as a property being let for short-term holiday let accommodation. He determined that continued use of the property for short-term lets would be socially and environmentally unacceptable.

The inspector concluded that there was clear evidence that the short-term holiday let use of the dwelling had had severe antisocial consequences. There had also been clear environmental harm caused due to the levels and frequency of noise and disturbance caused by visitors. He considered that the use had clearly undermined the quality of life for neighbouring residents and that there had been clear conflicts caused within the residential community. He did not consider that the measures in place to control or monitor the behaviour of some guests could mitigate against the reported activities. 

The inspector decided that planning permission ought not to be granted for the continued use of the property as short-term let holiday accommodation.

There is further information on short-term let visitor accommodation within section 16.5111 of DCP Online. 

Damned if you do

You have to pity the poor old enforcement officer in this appeal case (DCS Number 400-036-714), which concerns an enforcement notice directed at an extension to a house in Essex.

Planning permission had been granted in May 2019, the inspector recorded, for a first floor extension. The council became concerned, however, that it was being built with a flat roof rather than the approved pitched roof. 

The appellants explained that at the time the enforcement notice was issued in June 2021, the works were not complete and, due to financial difficulties brought on by the pandemic, the flat roof evident at that time was made watertight, and a fascia and temporary guttering were installed as a stop-gap measure. 

Quashing the notice, the inspector judged that the council had somewhat jumped the gun and should best have waited until the development was substantially complete before deciding that the extension’s physical form was such that formal action was necessary. He found it credible in the circumstances that complications arising from the pandemic had impacted on the appellants’ ability to implement the approved development as could have been reasonably expected. 

The inspector concluded that the council’s decision to issue an enforcement notice had been premature, finding that no material contravention had occurred at the time the notice was issued.

So it’s damned if you do and damned if you don’t. 

Relevant court cases can be found at section 4.5312 of DCP Online, where it is explained that the law only requires for it to “appear” to the planning authority that a breach of control has occurred.

A supporting role

In relation to planning policy it is as well to remember that supporting text is exactly that, a matter emphasised by an inspector in a recent appeal (DCS Number 400-037-176):-

“....officers appear to me to have elevated some of the provisions of [the policy’s] supporting text to a level equating to policy. I am reminded of the judgement [Cherkley Campaign Ltd, R (on the application of) v Mole Valley District Council & Anor [2014]] where Richards LJ said: ‘..when determining the conformity of a proposed development with a local plan the correct focus is on the plan's detailed policies for the development and use of land in the area. The supporting text consists of descriptive and explanatory matter in respect of the policies and/or a reasoned justification of the policies. That text is plainly relevant to the interpretation of a policy to which it relates but it is not itself a policy or part of a policy, it does not have the force of policy and it cannot trump the policy.’  “

There is information on the interpretation of development plan policy under section 4.2 of DCP Online.

In a scrape

A recent appeal followed enforcement action directed at works to a motorcycle race track in Lancashire (DCS Number 200-011-201). Finding themselves in a bit of a scrape, the appellants argued that the works and the laying of hardcore was a use of land, not an engineering operation. 

Accordingly, the inspector set out the nature, in planning terms, of an engineering operation:-

“Section 55(1) of the Act sets out the meaning of ‘development’ for the purposes of the Act, which means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land. It was held in Fayrewood Fish Farms Ltd v Secretary of State for the Environment [1984] that the term engineering operation should be given its ordinary meaning in the English language. It must mean operations of the kind usually undertaken by engineers, i.e., operations calling for the skills of an engineer. This does not mean that an engineer must actually be engaged on the project, simply that it is the kind of operation on which an engineer could be employed, or which would be within his purview. Engineering operations involve works with some element of pre-planning, which would generally be supervised by a person with engineering knowledge.”

Applying this to the case before him, the inspector observed that the earthworks were substantial and were likely to have been carried out using machinery. The appellant confirmed during the inquiry that a bulldozer and excavator had been used. Mounds, the inspector observed, had been shaped to create ramps and were located within the site to form part of a circuit. Where the land was naturally higher than the track, it appeared to have been cut away, to create the track. This, he considered, would have involved an element of pre-planning. As a matter of fact and degree, he determined that the works constituted an engineering operation and were therefore development for the purposes of the Act. 

The topic of engineering operations is covered at section 4.313 of DCP Online. 

Never too late

An inspector has rejected an appellant’s argument that reversing unauthorised works to a mid terrace listed building in a north London conservation area would do more harm than good (DCS Number 200-011-185):-

"At the hearing it was put to me that as the works were retrospective, if the application was refused, these works may not be easily rectified, or the works to rectify may themselves be intrusive. I have come to the view that whether or not the works can be rectified should not be a material consideration in considering whether or not Listed Building Consent should be granted. To do otherwise, would be to potentially allow works that would otherwise be unacceptable to be considered such [acceptable?] as a consequence of being carried out in advance of obtaining lawful consent. It is instead a matter for the Local Authority in considering whether to take enforcement action with regard to any unauthorised works."

Section 27.233 of DCP Online covers internal alterations to listed buildings.

No use hiding

Inspectors regularly take the view that the provision of screening is no good reason to allow harmful development. In determining an appeal against the refusal of retrospective planning permission for a barn within the setting of listed buildings in Essex an inspector recorded that English Heritage holds the same view (DCS Number 200-011-147):-

“As screening can only mitigate negative impacts, rather than removing impacts or providing enhancement, it ought never to be regarded as a substitute for well-designed developments within the setting of heritage assets. Screening may have as intrusive an effect on the setting as the development it seeks to mitigate, so where it is necessary, it too merits careful design.” 

Section 4.1681 of DCP Online concerns development within the setting of listed buildings.

A grassy knoll

An inspector has upheld an enforcement notice directed at an outbuilding at a house in east London on the grounds that the building was not permitted development, after ruling about how to measure its height (DCS Number 400-036-780).

Limitation E.1(e) of Part 1 Class E of the GPDO states that development will not be permitted where the height of the building would exceed 2.5 metres in the case of a building within 2 metres of the boundary of the curtilage of the dwellinghouse, the inspector recorded. Whilst it was agreed that the building was within 2 metres of the boundary the main parties disagreed as to where its height should be measured from. 

At the site visit both main parties measured the height of the building. The council representative's measurement showed that the building measured 2.9 metres in height at a point on one side of its front elevation, from the top of the immediately adjacent lawn level which was consistent with the remainder of the garden. The appellant’s representative showed that the building measured 2.4 metres in height at a point on the other side of its front elevation, from the top of an immediately adjacent raised grassed mound. The inspector judged, however, that the raised grassed mound was not representative of the prevailing land levels and there was nothing to explain why it appeared unnaturally higher. 

Referring to the Government’s Technical Guidance, the inspector noted that the height of any building claimed to fall under Class E should be measured from the highest ground level immediately adjacent to the building. The ‘General Issues’ section of the guidance explains: ‘ground level is the surface of the ground immediately adjacent to the building in question, and would not include any addition laid on top of the ground such as decking. Where ground level is not uniform (for example if the ground is sloping), then the ground level is the highest part of the surface of the ground next to the building’. 

The appellant pointed to McGaw v Welsh Ministers [2020], where it was found that the ‘adjacent ground’ from which the height measurement should be taken can include land which is backfilled to pre-existing land levels and does not have to be within the curtilage of the building. The inspector observed, however, that land levels in neighbouring gardens appeared to broadly correlate with those of the appeal site, with the exception of the raised grassed mound. The raised grassed mound appeared as an addition on top of the pre-existing ground level. 

McGaw, the inspector continued, refers to land levels on a partially excavated site which were to be backfilled to pre-existing levels consistent with the adjacent land levels in a neighbouring property. He judged that this was quite different from land levels being raised up beyond their existing level, inconsistent with neighbouring levels, as appeared to be the case with the raised grassed mound. Indeed, he went on, the judge in McGaw commented that taking existing ground levels for the purposes of calculating the height of a building may well be justified if backfilling was found to be a device to artificially raise the adjacent ground level so as to come within the relevant height limitation of Class E. That, the inspector found, was what had happened in the case before him, with the raised grassed mound having no clear purpose other than to artificially raise the ground level adjacent to the building. 

The inspector observed that taking the height of a building from the top of an adjacent area of land which has been artificially raised above pre-existing land levels would give a misleading measurement. In the case of buildings claimed to accord with Class E, that approach would encourage the raising of areas of land immediately adjacent to buildings to circumvent limitation E.1(e), which seeks to control the size of permitted buildings. 

The inspector determined that the raised grassed mound was not a true or fair representation of the ground level immediately adjacent to the building. He therefore found that the appellant had failed to demonstrate that the height of the building did not exceed 2.5 metres. In addition, aside from the height of the building, it had not been demonstrated that it was initially erected as a building incidental to the enjoyment of the dwellinghouse. The inspector was therefore unable to conclude that the building was erected with the benefit of the planning permission granted by Article 3 and Schedule 2, Part 1, Class E of the GPDO. 

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

All for nothing

Costs have been awarded against an east London council by an inspector who found that it had issued an enforcement notice upon the apparent readiness of the appeal property for use as a house in multiple occupation, rather than upon such a use actually having begun (DCS Number 400-036-683).

The inspector pointed out that the matters subject to enforcement action must have taken place; an enforcement notice cannot be issued in relation to a prospective breach. [See also A matter of speculation on this topic]. In the case of R v Rochester-upon-Medway CC ex-parte Hobday [1990], the inspector continued, it was held that the enforcement notice issued on this basis was a nullity, because the 1990 Act requires consideration of past or present, but not prospective, breaches of planning control. Finding that to be the situation before him, he declared the enforcement notice a nullity. 

In determining the costs application the inspector recorded that the enforcement notice alleged the making of a material change of use of the first, second, and third floor of the premises from storage to a six-room HMO. However, although recent renovation works on those floors appeared to the council to have been made in preparation for occupation as an HMO, such use had not started before the enforcement notice was issued.

The inspector noted that S174(2)(b) of the Act is worded in the past tense, and the question is whether the breach had occurred by the date of issue of the enforcement notice. He found no evidence of a breach of planning control to use as an HMO having occurred or started before the enforcement notice was issued. Accordingly, the full costs of the appeal proceedings were awarded to the appellant.

Section 11.2 of DCP Online concerns multiple occupation.

Should have known

Costs have been awarded against a Gloucestershire council after it introduced a new reason for refusal in its appeal statement (DCS Number 400-036-821), despite arguing that the appellant should have known it was in the wrong. 

The council had refused permission in principle for a single dwelling in a green belt village for the single reason that it would not constitute infill development, and consequently would constitute inappropriate development within the green belt. 

The inspector, however, saw that the proposed dwelling would be flanked on either side by existing dwellings and would also face houses on the opposite side of the road. As a result, he considered that it would relate well to the existing pattern of development along the road, assimilating effectively with the wider street scene. When viewed from the more open fields to the rear, he found that the proposal would also be read within the context of surrounding residential development, which would again allow it to integrate effectively within the existing built fabric of the village. Given this surrounding context, he considered that the proposed development would constitute infill development. As the proposal would constitute infill, it would fall within one of the permitted exceptions to development in the green belt, and would therefore not be inappropriate. Accordingly, he decided that the site’s location would be suitable for a single dwelling. 

At appeal the council sought to introduce an additional reason for refusal in its statement. This reason, the inspector recorded, alleged that “the appeal proposal would fail to be a sustainable form of development having regard to national and development plan policies in respect to the delivery of new housing”. In turn, the appellant prepared and submitted a rebuttal to address this additional argument.

The council later acknowledged that this additional reason for refusal was included “in error”. Nevertheless, it contended that the applicant “...should have known that the Council was wrong to introduce these reasons and could have approached the council before committing to any rebuttal”. 

Un-be-liev-able.

The inspector did not accept the council’s position, pointing out that it is commonplace for parties to respond to the opposing party’s evidence. The costs incurred in the preparation and submission of evidence to address the council’s argument that the proposal would not represent a sustainable form of development, having regard to national and development plan policy, were awarded to the appellant.

Section 6.1 of DCP Online concerns costs awards.

Food for thought

A planning inspector has granted permission for the change of use of part of an industrial warehouse in the West Midlands to a commercial kitchen, finding it an appropriate use in an industrial area (DCS Number 400-036-767).

The inspector recorded that there had been some debate between the parties as to what Use Class the proposed development fell within. The appellant described the use as a “dark kitchen”. This is a relatively new concept, the inspector noted, which involves a commercial kitchen producing takeaways but using online delivery platforms. Having regard to the totality of evidence provided, the inspector was satisfied that the nature of the use did not fit into the designation of either Class E(g) (formerly B1) or B2 of The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020. This was due to a number of features of the use, including the frequency of small-scale deliveries that would occur from the premises. The inspector therefore agreed with the council that it was a sui generis use. 

The inspector identified the main issue as being the effect of the proposed change of use on the loss of an employment use within a core employment area. Limited information had been provided as to the scale or operation of the use, other than that food would be cooked on the premises, which would then be collected by a delivery driver, who would then deliver the food to the customer. The inspector reasoned, however, that the cooking of the food could be described as an “industrial process” as it would be similar to a commercial kitchen. This would include the potential for noise, smells and other activities, such as delivery of raw ingredients, which would not be out of place in an industrial area. The delivery of the food would involve frequent trips of small orders direct to the customer, rather than less frequent trips of large orders to a shop or catering facility/function that would usually be found with a commercial kitchen. 

The inspector observed, however, that other commercial uses existed nearby that also involved the frequent delivery of small orders, such as tool hire and vehicle parts delivery. The proposed use would therefore comprise two parts, a commercial kitchen and frequent small deliveries, both of which the inspector found to be appropriate within an industrial area. The inspector concluded that the change of use would therefore comply with development plan policy which sought to strictly control the supply of employment land. 

A further appeal case involving a “dark kitchen” is summarised at section 16.2111 of DCP Online.