	Casebook
	Cases from this week's Casebook section of Planning magazine and PlanningResource. To download the full decision for any case, you will need to create an account on Compass Online.

PLOT 2A, OFF LEDERLE LANE, 154 FAREHAM ROAD, GOSPORT

A building materials factory was rejected on an industrial estate in Hampshire because cement dust would damage aluminium yacht parts made at a nearby unit. The firm opposite the appeal site supplied aluminium yacht spars for the UK market and tapered aluminium dinghy spars, carbon fibre yacht spars and carbon fibre dinghy spars to the international market. The inspector noted that it was common ground that alkaline cement dust could have an adverse effect on aluminium. The ready to use anodised tubing for yacht masts was stored in an open yard until needed. The firm explained that dust became adhered to the tubing while in storage. It was difficult and expensive to remove and caused discolouration. The quality expectation was very high as they sold boats with a value up to about £1.9 million. Cementitious materials would arrive at the site in bulk tankers and be transferred pneumatically to enclosed storage silos via flexible hosing with sealed couplings. The appellants claimed that filters meant that emissions from the silos would easily comply with the maximum set by their permit under the Pollution Prevention and Control Act 1999. The inspector acknowledged that PPS23 stated that the planning and pollution control systems were separate but complementary and that planning authorities should work on the assumption that the relevant pollution control regime would be properly applied and enforced. However, she noted that a number of unanswered questions remained about the relevance of the manufacturers’ tests. PPS23 also advised, she noted, that the precautionary principle should be invoked where the level of scientific uncertainty about the consequences or likelihood of risk was such that the best available scientific advice could not assess the risk with sufficient confidence to inform decision making. On the basis of the evidence before her the inspector was not persuaded that there would not be a significant adverse effect on the operating environment for the mast firm.

ASDA STORES LTD, UTTING AVENUE, WALTON, LIVERPOOL, MERSEYSIDE, L4 9XU

An inspector rejected an extension to an Asda supermarket in Liverpool on the basis of visual harm and disturbance to neighbours. The proposal involved a 3763 square metre addition to an existing supermarket within a large residential area. The inspector held that the new extension would appear as a box-like structure composed of brick, white cladding and aluminium panels. He considered that it would have the appearance of a warehouse, would look alien in its residential context and incongruous when seen alongside the existing supermarket, which had a different design ethos. In particular, he held that the shallow pitched aluminium roof would contrast sharply with the adjacent domestic style, tiled, hipped roofs. Additionally, he found that the moving of the entrance would expose a bland monolithic frontage to views from across the car park. He observed that the proposal would intrude into views up and down the road for a considerable distance. To be successfully developed in this way he judged that the site required a landmark design. He opined that the proposal fell far short of being iconic. The inspector also reasoned that the proposal was a significant extension which would result in increased deliveries, noise and disturbance. The appellant had offered to build an acoustic fence to mitigate this. However, it would be only four metres high and the inspector therefore concluded that it would make little difference in rear bedrooms of adjacent houses.

CHALCROFT NURSERY AND ASSOCIATED LAND, CHALCRAFT LANE, BOGNOR REGIS, WEST SUSSEX

A local authority’s decision to impose two conditions on a housing development in West Sussex was not supported by an inspector who ruled that they were excessive and unreasonable. The two dwelling scheme was subject to conditions requiring them to be built to level five based on the code for sustainable homes guidance published by the building research establishment (BRE). The conditions required the submission of both interim and final certificates confirming that the code had been met. The inspector decided that the requirement for the dwellings to be built to level five was substantially in excess of current building regulations. They also required the submission of an interim report together with a design stage report. In her opinion, the council would not have refused permission had the interim stage not been met. More importantly, she reasoned, the code set out by the BRE was voluntary and the appellant had never offered to meet this level. Rather, he had indicated a willingness to build to code level three in anticipation of changes to the building regulations. She therefore imposed a new condition requiring this standard to be met.

RIPLINGTON FARM, EAST MEON, PETERSFIELD, HAMPSHIRE, GU32 1HU

The conversion of listed barns in the Hampshire countryside to a wedding and conference venue was rejected because car parking would harm its setting and traffic would be disturbing to neighbours. An inspector had no doubt that replacing the corrugated iron sheeting on the main barn with thatch would greatly enhance the appearance of the buildings and secure their long term conservation. However, the use required the construction of a car park for nearly 50 vehicles and would extend for about 75m along the road into a field. She found that the scale and location of the parking area would be an intrusion into the site’s open and exposed downland landscape setting, harming its special character and quality. With regard to noise arising from the use of the venue, including music, the inspector held that the proposal would not be incompatible with nearby residential uses provided a noise management plan was in place. She acknowledged that it would require a high level of supervision but pointed out that the continued use of the premises would be dependant upon it. She opined, however, that one of the neighbouring dwellings was so close to parts of the car park that loud voices, car doors slamming, and vehicles starting up and emerging from the access would result in residents suffering an unacceptable degree of disturbance late at night.

LOMOND VALE NURSING HOME, CHURCH STREET, LOWER GORNAL, DUDLEY DY3 2PF

An inspector decided that notwithstanding the merits of a scheme in the West Midlands, permission should be denied because the appellant had not submitted a planning obligation dealing with financial contributions. The 11 apartments were proposed close to a grade II listed church and the council, in rejecting the advice of its officers, had concluded that the contemporary design proposed would undermine its setting. They also claimed that a building which had stood on the site and which had been demolished was thought to have been the original vicarage and any new development should be more reflective of the original. The inspector noted that the apartments would sit under a V-shaped roof constructed of profiled metal sheets and the walls would comprise facing brickwork and render. In her opinion, it would not be unduly dominant and would be a building of its time. However, a financial contribution of approximately £24,700 was required towards open space, transport infrastructure and improvements to the public realm. Although the council stated that this could be dealt with in the form of a condition requiring the submission of a scheme, the inspector decided that the guidance in circular 11/95 on the use of conditions should be followed. This clearly stated that permission could not be granted subject to a condition which required an appellant to enter into a planning obligation. Accordingly, the appeal failed because of this issue.

13 MACE CLOSE, LONDON E1W 2JX

An inspector sided with a local authority in east London after deciding to uphold an enforcement notice which claimed that a dwelling house was in use as a house in multiple occupation (HMO). The property had been altered to create six bedrooms, four with en suite bathrooms and the original living room served as a shared kitchen and dining area. The appellants stated that the building was occupied by six tenants. However, they asserted that they lived as a single household and relied on the judgment in Barnes v Sheffield [1995] where the court of appeal ruled that the occupants in that case did occupy a property as a single household. The inspector decided that since a HMO was not currently defined in planning legislation it was a matter of fact and degree. Each of the bedroom doors could be locked, she noted, and the tenancy agreements did not require anything other than a superficial interaction between them. There was no joint responsibility for the house as a whole such that overall she concluded they did not live together as a single household. She supported the council’s claim that there was a need to ensure a balanced supply of residential units. The borough had a high proportion of flats and maisonettes and there was a need to maintain family dwellings containing three and four bedrooms. Granting permission would lead to the permanent loss of such accommodation, she concluded. In upholding the notice she allowed the period for compliance to be extended to seven months because of the tenancy arrangements.

WANGFIELD FARM, WANGFIELD LANE, CURDRIDGE, S032 2DA

In serving an enforcement notice alleging that a dwelling at a stud farm and equine clinic in Hampshire was not being occupied by a person who mainly worked at the enterprise, a local authority raised doubts about the accuracy of the appellant’s evidence. The council had granted planning permission for the erection of a four bedroom dwelling. The condition stated that its occupation must be limited to a person working solely or mainly in the business. It claimed, however, that the appellant mainly worked as a mobile farrier and as a consequence the time spent looking after the horses was limited. It asserted that the appellant’s credibility as a witness was undermined by conflicting evidence given to the inquiry and in his responses to a planning contravention notice (PCN). The inspector noted that the appellant was an experienced farrier who travelled around the country. However, in his response to the PCN he confirmed that 35 hours per week were spent in the stud farm with a further 20 hours per week spent on remedial farriery. The latter included shoeing lame horses and liaising with vets at the farm. In the inspector’s opinion the appellant had been remarkably open about the hours spent on different activities including the fact that his mobile farriery business, which was unconnected with the enterprise, often required him to travel each day. However, he always returned in the afternoon to work at the enterprise after initially doing a few hours work tending the horses in the early morning. She opined that the appellant did work mainly in the enterprise and therefore complied with the terms of the condition.

LAND TO THE SOUTH EAST OF WHITSTONEDGE, CANDIE ROAD SOUTH, FALKIRK, FK1 2LE

In refusing permission for the erection of three dwellings on former brickworks near Edinburgh a reporter stated that he was unsure as to how contaminated the site was. The site had been subject to coal mining activity and a brickworks had ceased operating in the 1980s. It contained a spoil heap, decaying brick structures and large amounts of broken bricks. The appellants stated that the site was visually harmful to the character of the area and there was a risk that the site contained high levels of contaminants that would be removed if the scheme were permitted. The reporter noted, however, that the desktop study submitted by the appellants did not actually identify what contaminants existed nor the environmental benefits associated with their possible removal. In his opinion, the scheme had little support from policies in the council’s local plan, noting that the majority of the site was screened from public views and therefore its visual impact was limited. Overall, he decided that any environmental benefits associated with the site’s redevelopment did not outweigh countryside policies which restricted housing development in such areas.

LAND AT 28-30 HEATHFIELD ROAD, LONDON SW18 3HP

In upholding an enforcement notice requiring a block of flats in a south west London conservation area to be altered an inspector decided that her decision would not violate the human rights of people already living in the property. The council had granted planning permission in 2004 for the erection of a five storey block of flats incorporating 17 parking spaces in the basement. The council stated that the intention had been to create a low level housing development built into the slope of the land. It would have had flat green roofs and a conical traditional windmill form to try and maintain the open and green appearance of the site and the character of the conservation area. However, the development as built comprised a building which was one metre taller and the roof had a different shape being of reduced depth. In addition, the car lift building had increased from three metres to approximately five metres in height. The council stated that these changes adversely affected the character of the area. The inspector considered the approved plans and compared them to the building erected on site. She noted that the approved roof included a fan-like pattern on the cladding which added a touch of finesse. It had been designed in order to allow the balconies and windows to be visually dominant. However, as built the roof appeared as a seamless structure which appeared top heavy and did not have the articulation or subtlety associated with the approved design, she opined. In addition, the car lift building appeared to have been installed on the basis of the specification provided by the chosen lift supplier and little attempt had been made to explore alternative design solutions which would have reduced its visual impact. In arriving at these conclusions she noted the explanation provided by the appellants in respect of the changes. However, in her opinion the roof as built comprised an overly dominant component which undermined the architectural quality of the building and departed from the approved design ethos. Replacing the roof would inevitably lead to disruption for existing occupiers particularly those on the upper floors. They would have to be temporarily re-housed and this would involve an interference with their right to peacefully enjoy their property and to pursue private and family life. However, this interference would not be serious and it was in the public interest to ensure that a satisfactory design was achieved on a sensitive site. The notice was therefore upheld.

KEITH HILL, HUMBIE, EAST LOTHIAN, EH36 5PN

A development comprising of 10 wind turbines in the Scottish borders was dismissed because the landscape was incapable of accommodating the magnitude of the likely change. The turbines would have a maximum height to blade tip of 100 metres and would be sited within an area designated as having a high landscape value which was characterised by plateau grassland. The latter already contained a large wind farm containing 26 turbines, the appellants, stated which was undergoing further expansion with the addition of 35 turbines up to 75 metres high. They claimed that these developments had already affected the character of the area making it more able to accommodate the proposed scheme. The inspector decided, however, that the height of the turbines would mean that they would appear above the rim of a scarp slope such that they would be seen over a wide area. The appellants’ own environmental assessment had concluded that the magnitude of the change would be high, leading to substantial changes to the character of the area. This impact would be exacerbated by the intervisibility with the existing wind farm, he ruled.

KINGS LYNN & WEST NORFOLK

LAND KNOWN AS FRING, DOCKING, KINGS LYNN, NORFOLK PE31 6SQ

A claim by local residents that the erection of an anemometry mast on a site in Norfolk would give rise to a future application for a wind farm development was rejected by an inspector who decided that it was simply a means of measuring the wind resource. The appellants proposed erecting an 80 metre high mast for a period of three years. The council objected to the scheme because the site lay within an important landscape area. It also stated that the Norfolk Coast AONB lay approximately five kilometres from the site and its setting would be harmed. The inspector noted that the area was characterised by an extensive and undulating landscape of large fields marked by low hedgerows. The general lack of buildings and dispersed minor roads gave the area a strong sense of isolation and tranquillity. Despite its overall height and the radiating spread of its guy wires, it would not appear unduly conspicuous or intrusive, he concluded, largely as a result of its slender and tapering form. When examined in views towards the AONB it would appear as a very minor and generally indistinguishable element in the broad outward vista, he concluded. With regard to its potential impact on bird populations, large migratory populations of pink-footed geese flew inland from parts of The Wash and the coast, he noted. The mast would present a potential hazard. However, this could be mitigated by attaching deflectors to the guy wires to minimise the risk of collisions. In relation to the claim that it represented a precursor for a wind farm proposal, the inspector decided that this might or might not be the case. The mast would gather information on wind speeds. The merits of the scheme had to be judged on the basis of a single mast and not on the impact associated with a wind farm development, he ruled.

WEST LANCASHIRE

LEISURE LAKES, MERE BROW, TARLETON PR4 6JX

The creation of a football pitch in Lancashire was subject to successful enforcement action when an inspector concluded that the activities undermined the amenity of local residents. The area of mown grass had been marked out with white lines and two goal posts had been erected. The inspector noted that part of the area was bounded by residential properties and local residents claimed that they had had to endure loud shouting and the use of foul language by adults when games were being played. Given the proximity of the pitch to the private gardens, it was not surprising that the activities had adversely undermined the amenity of local residents particularly in the summer months. Restricting the hours of use would not solve this problem, he ruled, because of the unacceptable proximity between the pitch and the gardens.

OXFORD COURT, LANCASTER ROAD, CARNFORTH, LANCASHIRE, LA5 9LD

A condition restricting the occupation of 15 sheltered housing units in Lancashire was deleted after an inspector decided that it would not adversely affect highway safety. The condition stated that the occupiers of the flats should be at least 55 years old. The council stated that the development had been built with only five car parking spaces and removing the condition was likely to lead to an increase in car ownership. However, the appellants stated that at national level 79 per cent of people in the 55-65 year age group regularly used a car compared with between 79 per cent and 84 per cent car occupancy in the age groups between 25 and 54. Accordingly, removing the condition would have little impact on the number of cars owned or used by residents, they asserted. The inspector noted that the site was located close to a town centre and was accessible by a choice of means of transport. In his opinion, lifting the condition would not materially increase car use and accordingly would not lead to pressure for on-street car parking or compromise highway safety. Although the intention of the condition had been to allow people over 65 years to occupy the accommodation even if they had younger spouses, the evidence suggested that deleting it entirely would not have any material impact on highway conditions.

THE FAN MUSEUM, 12 CROOMS HILL, GREENWICH, LONDON, SE10 8ER

A museum in south-east London was prevented from holding private functions because the events were likely to undermine the amenity of local residents. The appellants wished to hold no more than 40 events a year with each event limited to a maximum of 70 people and each finishing no later than 11pm. In the case that the finishing time was unacceptable, an earlier time of 8.30pm limited to 30 gatherings was acceptable, they claimed. They also stated that unofficial events in the past had not led to complaints from residents. The inspector noted that the garden associated with the museum abutted another property and views into the garden could be obtained. In his opinion, a gathering of up to 70 people would lead to unacceptable levels of noise and, particularly in the summer months, an undesirable reduction in the privacy and seclusion enjoyed by existing residents due to overlooking of adjacent gardens. Even a sedate function could result in a relatively high degree of background noise, he decided, and the proposed controls would fail to ensure that residential amenity was protected.

LAND AT THE REAR OF 211-2 WOOD LANE PELSALL WS3 5AD

The conversion of redundant stables adjacent to a canal in the West Midlands was rejected due to harm to the green belt and the character and appearance of the area. An inspector considered that extensive roof works and a rear extension meant that the building would have a materially greater impact on the openness of the green belt. He observed that the cluster of buildings on both sides of the canal was separated from the village by an extensive open area which included grassland, woodland, ponds and a canal. He held that the overall impression would be of a house rather than a canal building. It would be markedly different in appearance from the houses across the canal, he opined, and would be the only dwelling on one side of the stretch of canal. He took the view that the introduction of a new dwelling in the open, rural, and isolated location would be an incongruous and intrusive feature. Noting that the site was more than 300m from the nearest public road and more than that again to most shops and village services the inspector also considered that the development would not accord with the principles of sustainable development. The appellant argued that the development would allow the retention of a building of some historic importance. Although not subject to national listing the building was locally listed for its historic value and the inspector was informed that buildings of the kind were rare. Both the Inland Waterways Association and British Waterways endorsed the development as a means of retaining the building. The inspector reasoned, however, that the proposal would significantly change the appearance of the building, it was unlikely that members of the public would be able to visit it, and it had not been shown that there was no other feasible way of retaining the building and allowing the public some access to it.

TONBRIDGE & MALLING

KING STREET MOTOR SERVICES, 40 KING STREET, WEST MALLING ME19 6QT

A council’s attempt to prevent a longstanding car repair garage in a Kent town being redeveloped for four houses failed after an inspector decided that it would not result in the loss of a community facility. The council relied on a policy within its core strategy which stated that proposals which involved the loss of sites which were used for the provision of community services would only be allowed in specific circumstances. The council stated that while garages were not specifically referred to in the policy, the latter should be interpreted broadly. It asserted that the garage played an important social and economic role in town life, adding to local diversity and interest. The inspector was not convinced by these arguments noting that the policy referred to schools, places of worship, libraries, recreation and amenity space and public services. In his view, a car repair garage did not fall within the same category as these uses which had a specific social role in the local community. People did not socialise at the garage and it was possible for residents to travel to other car repair facilities, he concluded. The appeal was allowed.

EAST NORTHAMPTONSHIRE

THE LAND INCLUDING ANY BUILDINGS THEREON KNOWN AS 1 MEETING LANE, IRTHLINGBOROUGH, NORTHAMPTONSHIRE

In allowing an appeal against an enforcement notice requiring a Northamptonshire householder to cease using a flat roof extension as a sitting out area, an inspector decided that the use was not unlawful. In addition to alleging an unauthorised use of the roof the notice also required the removal of a balcony around the roof together with a platform sited thereon. These items had been removed. However, the appellant stated that the actual use of the flat roof did not involve a breach of planning control. Rather, he claimed it was incidental to the enjoyment of the dwellinghouse and accordingly did not fall within planning control. The inspector decided that the use of the roof as a sitting out area was something which was generally associated with the residential use. It would not result in a significant change in the character of the activities within the planning unit. Although the court in Croydon London Borough Council v Gladden [1994] held that the concept of enjoyment of a dwellinghouse embraced an element of “reasonableness”, the use of the flat roof was not so unreasonable, he held, as to make it fall within planning control. Accordingly, he varied the notice to remove the restriction of using the roof as an outdoor amenity area.

28 WARWICK ROAD, EALING, LONDON W5 3XJ

In striking down an enforcement notice requiring the owner of a dwelling in west London to amend a rear extension to accord with an approved plan, an inspector in deciding that it was not permitted development nonetheless accepted that the scheme should be approved. The appellant argued that the extension as built complied with Class A of Part 1 to Schedule 2 of the GPDO 1995 in that the volume of the space did not exceed 15 per cent of the volume of the original dwellinghouse. In so asserting he accepted that this calculation assumed that the volume of a garage which was built at the same time as the dwellinghouse and was located within five metres thereof should be included within the total volume of the original dwellinghouse. The inspector decided that the garage involved a separate building which was not used as habitable accommodation. There was nothing in the original GPDO which stated that in calculating the volume of the original dwellinghouse this should be inflated to include any freestanding buildings irrespective of how close they were to it. On this basis the extension exceeded the 15 per cent limit and was not permitted development. However, he decided that this was not the end of the matter. The general design and massing of the extension was not unduly different from the approved scheme. The main difference was the height of a flank wall which adjoined a neighbouring property. This was 3.35 metres high compared with just over three metres on the approved scheme. Although the council’s supplementary planning guidance stated that rear extensions should be a maximum height of three metres, this did not mean that extensions above this height would automatically be unacceptable. The adjoining property had a spacious garden and so the feeling of being hemmed in was less pronounced. The impact was also mitigated by trees and bushes, he decided, and allowed the appeal.

80 CROOKESMOOR ROAD, SHEFFIELD, S6 3FR

The conversion of a grade II listed church in South Yorkshire was held to be unacceptable because of the unsympathetic changes which were included within the scheme. The appellants proposed converting the hall into three maisonettes aimed at the student housing market. In addition, a two storey extension would be added to a coach house situated within the grounds to create nine bedrooms in shared accommodation. The appellants stated that the layout of the hall was awkward and inefficient and retaining the existing staircases would be inefficient and unacceptably restrict the use of the building and entail undue cost. They also asserted that a feasibility study had demonstrated that all other uses were unviable. An inspector noted that part of the coach house was in a ruinous condition and the proposed extension would be unashamedly modern. In his view this part of the scheme would involve a successful design intervention which would fit into the local context and result in a successful contrast between old and new. However, the proposed conversion of the main hall would be less successful, he opined, involving both vertical and horizontal subdivision which would also necessitate the removal of two staircases. These, he decided, were evocative of the historic origins of the building and the insertion of five roof lights within the front roof slope and six at the rear would be visually dominant and harmfully affect its external appearance. In his opinion, insufficient evidence had been submitted to demonstrate that it was unfeasible to retain the open and high ceiling character of the main space. The defining character of the building was the voluminous space and this would be completely removed by the current scheme. Although the property had undergone insensitive alterations and the scheme would restore many original features, this did not outweigh the adverse impact on is defining character, he ruled, also noting that the scheme would reduce the privacy of residents living adjacent to the site.

STATION GARAGE, STONE STREET, FAVERSHAM, ME13 8PH

An inspector rejected a car wash at a former petrol station in Kent, expressing concern about the potential for ground water contamination. The inspector observed that the use would require significant quantities of water. The appellant indicated that it could be collected by existing channels across the forecourt connected to an interceptor and recycled. The inspector acknowledged that this might be appropriate but remarked that no details had been provided. He observed that the existing drainage channels could prove inadequate and remarked that any overflow would result in the washing water and chemicals being discharged onto the public highway. In view of the former use of the site he held that there was a risk that the land could be contaminated. Any washing water could convey this contamination, as well as the washing chemicals, to a ground water source. The inspector noted that PPS23 required pre-application discussions with the appropriate authorities but that no risk assessment or any other relevant information had been submitted. He held that such evidence was particularly important as the site lay within a source protection zone 1 for potable ground water abstraction. The inspector concluded that there was no certainty that the proposal would not adversely affect water sources by the use of large quantities of water and chemicals which could be discharged from land that had the potential to be contaminated. It therefore could not be sustainable, particularly in an area where water was in short supply, he decided.