Planning Law Update – April 2019

April was a quiet month for planning law with nothing in the way of non-brexit related legislative changes. There was also a slow-down in planning appeal decisions being released. This is a result of the local elections and PINS taking care not to influence these. That said, there was an interesting case regarding agricultural occupancy conditions and a possibly expensive clarification for developers in respect of who is required to pay for the relocation of telecoms equipment.

We update below on recent planning law changes:

Legislation, Case Law or Policy	Summary
PINS: APP/M0655/C/18/3206121	An Appeal was made against an enforcement notice issued by Warrington Borough Council. The issue was whether or not the breach of planning control (the erection of the cricket practice cage in the rear garden) constituted the erection of a building, and, if so, whether this was permitted development taking into account the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (GPDO). It was held that this cage was to be classed as a “building” under S.336 of the TCPA 1990. The Inspector referred to three matters which must be considered when deciding if a development is a building: - The permanence of the “building” - The physical attachment to the site - Whether the “building” was constructed on site Although the cage does not need to be constructed on site, the fact the poles were secured by concrete and it was permanently in place in the garden therefore amounted to a “building” under S.336. The Inspector noted that permanent in the context of planning control need not mean “everlasting”. The Appeal was dismissed and the enforcement notice upheld; express planning permission was required from the local authority.
PINS: APP/B1415/W/18/3216091	An Appeal was made against the refusal of planning permission for the proposed change of use from a dwelling (C3) to a mixed use dwelling (C3) and hairdressing salon (A1). The main issue was how the change of use affected the character of the area due to an increase in visitors and vehicles to the property. The inspector concluded that as the property was located in a quiet residential close and would operate around 21 hours a week, the overall effect of the level of traffic movements would be “out of keeping” with the area and would cause significant harm to the residential character of the area. The Appeal was dismissed.
PINS: APP/X0415/X/18/3210876	An Appeal was made against the refusal to grant a certificate of lawful use or development (LDC) in respect of a new vehicular access to a permeable driveway parking area for which it had granted an LDC. The main issue was to determine whether the development came within the boundaries of Class B of Part 2 to Schedule 2 of The Town and Country Planning (General Permitted Development)(England) Order 2015 (the GPDO). Class B permits the formation, laying out and construction of a means of access to a highway which is not a trunk road or a classified road, where that access is required in connection with development permitted by any Class of Schedule 2 (other than Class A of Part 2) (including a permeable driveway). Class B does not permit development where it would create an obstruction to the view of persons using any highway used by vehicular traffic, so as to be likely to cause danger. Following a site visit by the Inspector he concluded that restricted visibility and dense hedges to either neighbouring houses contributed to the obstruction that the proposed access would create to road users and pedestrians and therefore the development would not be permitted pursuant to Class B. The Appeal was dismissed.
PINS: APP/L1765/W/18/3211073	An Appeal was approved in respect of a refusal of an application to remove an Agricultural Occupancy Condition (ag tag) stating: “The occupation of the dwelling shall be limited to a person solely or mainly working, or last working in the locality in agriculture or in forestry, or a widow or widower of such a person and to any resident dependants.” The Council imposed the condition in 2007 as the site was in an area where new dwellings are not normally permitted except where there is an overriding need in the interests of agriculture and forestry. ‘Ag tags’ reduce the market value of a property and once imposed can be difficult to lift. In this case, Winchester City Council refused the initial application to remove the condition. The Appeal was granted. The condition was no longer considered necessary as the inspector concluded that there was no conflict with the local plan policy, nor was this property needed for solely agricultural workers anymore on the basis of marketing evidence submitted by the appellant. The marketing was carried out for over 5 years at a discount to the market value. The appellant provided evidence that the discount offered due to the existence of the Ag Tag should be 30-50% of open market value. Due to the location and size of the house and outbuildings the inspector accepted that the percentage discount that would need to be applied enable the majority of rural workers would be considerably in excess of 30-50%. However, in isolation this factor was not determinative and the extended period of marketing was also required.
Evolution (Shinfield) LLP and others v British Telecommunications Plc [2019] UKUT 127 (LC)	A developer’s application for an order under paragraph 40(6) of the Electronic Communications Code 2017 (the Code) for the removal of BT’s electronic communications apparatus from a publicly maintained footway adjacent to a roundabout at BT’s expense was dismissed by the Upper Tribunal (Lands Chamber). The apparatus which had been installed the year before the developer’s planning permission was granted, needed to be moved to enable the construction of an exit over the footway which was crucial to the development. The Upper Tribunal had to make the decision regarding which party would pay the significant relocation costs of the apparatus. Under paragraph 20 of the old Code, the developer was liable for the relocation costs. However, the Developer argued that under paragraph 38 of the Code, BT should remove the apparatus without charge to it. The Upper Tribunal agreed with BT that the reference in paragraph 38 to apparatus “which interferes with or obstructs a means of access to and from the neighbouring land” meant an existing means of access rather than “something potential”. It did not include a non-existent inchoate route that was not obstructed when the apparatus was installed. This judgment helps to illustrate the relationship between paragraph 38 of the Code and code rights and access to land.
PINS: APP/J1915/W/18/3210078	An inspector dismissed an appeal regarding whether a rear extension formed permitted development on the basis that the garage to the dwelling was set back by approximately 10cm from the rear elevation of the dwelling and therefore created a side elevation. The Secretary of State may under Section 59(1) of the Town and Country Planning Act 1990 by way of a development order grant a deemed planning permission for a specified development or classes of development. The Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/596) (GPDO 2015) is a national grant of planning permission for specified types of development. Schedule 2 of the GPDO 2015 sets out the types of development granted permission described as “permitted development” this includes a development within the curtilage of a dwellinghouse (Part 1, Schedule 2, GPDO 2015). Class A, Part 1, Schedule 2 to the GPDO 2015 permits the enlargement, improvement or other alteration of a dwellinghouse, subject to conditions and limitations. Development is not permitted under class A where the enlarged part of the dwellinghouse would extend beyond a wall forming a side elevation of the original dwellinghouse, and would have a width greater than half the width of the original dwellinghouse (paragraph A.1 (j) (iii)). The appeal property was a two-storey detached house with a single storey side element (garage). The rear wall of the garage was set back from the rear elevation of the two-storey part of the dwelling by approximately 10cms. The appellants wanted to construct a single storey extension which extended across the entire width of the house. The Council considered that because the garage was slightly set back, the 10cm gap comprised a side elevation of the original dwellinghouse, and therefore the proposed extension did not fall within permitted development rights, as it would extend beyond that 10cm elevation, this would be wider than half of the width of the house. Whilst the garage was only set back a very short distance, it did not prevent the wall from constituting a side elevation as set out under the GPDO 2015 as there is nothing in guidance which set outs minimum dimensions below which a wall cannot constitute a side elevation.
PINS: APP/N4720/W/18/3216727	A portable shelter for a practice tee at a golf club which was located in the green belt was not granted planning permission, due to the development being inappropriate within the green belt, the inspector also considered whether the proposed shelter was a building in planning purposes. Planning permission is required under section 57(1) of the Town and Country Planning Act 1990 (TCPA 1990) for the carrying out on land of any development. Development is defined as the “carrying out of building, engineering, mining or other operations in, on, over or under the land, or the making of any material change in the use of any buildings or other land” (section 55(1), TCPA 1990). The shelter which was ten metres wide and four metres high, provided a teaching facility at the golf club and gave cover for those practising golf. It was modestly sized and visually was a lightweight structure with an open front, a partial open rear with a mesh material which also formed part of the sides. The rest of the shelter was covered by a green polyethylene material. The shelter had wheels to manoeuvre the cover to alternative locations but was tethered to the ground over a gravelled area which had an artificial golf tee surface. Section 336 of the TCPA 1990 states that a building “includes any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building”. The inspector considered that even though the shelter was portable, that due to the fact that it had been tethered to the ground meant there was a degree of permanency and could be considered a building. As such it constituted development pursuant to s57 TCPA 1990 and required planning permission. In considering the green belt issues the inspector considered that the shelter would not have an adverse effect on the character and appearance of the area due to its purpose, scale, design and locational backdrop. The development would be an appropriate facility for outdoor sport and would preserve the openness of the green belt. The appeal was therefore allowed.
MHCLG publishes guidance in relation to Brexit statutory instruments for local authorities	Guidance has been introduced by the Ministry of Housing, Communities and Local Government (MHCLG) and the Department for Environment, Food and Rural Affairs (Defra) with the aim to provide information surrounding the documentation that should be amended by local authorities to implement changes introduced by the new Brexit statutory instruments. Whilst the majority of the Brexit statutory instruments were introduced by Defra and relate to the environment, the MHCLG have also produced a list that relate to areas including planning, food and product safety and employees. As part of the guidance provided by Defra, local authorities should make a note on their documents to make the reader aware that it may not be up to date in light of Brexit and give the authority time to revise their documents in priority order.
Non-statutory guidance on the provision of schools	“Delivering schools to support housing growth” was published by the Department of Education and the Ministry of Housing, Communities and Local Government on 11 April 2019. This sets out advice for local authorities on how to plan for new school places required due to housing growth including best practice in securing developer contributions for education.

For any further details or advice, please contact a member of our Planning & Environment Group: Planning Team or Environment Team.

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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.