The Inspector Says... Extracts from the planning press
prepared and annotated by John Bishton.
Key Word and Topic index
Too soon, too greedy
An inspector has rejected a proposal to build 99 houses, which would enlarge a village in Scotland by 10%. The rural centre was expected to take another 15 houses according to the 1989 Structure Plan. The emerging local plan included a proposal from the inspector that had not yet been considered, for an increase of 60. An adequate supply in the area could lead to that being rejected.
10% may indeed be too many in one dose. Many ASHTAV settlements will have grown by far more, but over a period of years.
DCS No: 100038797
A roofless cottage with no defined curtilage in open countryside, once used for storage, and in need of substantial demolition and rebuilding before use as a dwelling, could not be granted a lawful use, said the inspector. It was dilapidated in 1963, appealed in 1979.
Doubtless, one of many that promote dreams.
DCS No: 44458725
A proposal for off-site affordable provision has been allowed by an inspector. He accepted that it would be impractical to make provision on the same site as an open market development of sheltered apartments, and accepted that a financial contribution could suffice for subsidised development elsewhere. Also, the potential development was objected to by English Nature because of its proximity to Thames Basin Heaths Special Protection Area. The inspector thought that the new residents were less likely to affect these sites than the people who might live in the houses to be replaced.
DCS No: 100043144
This could surely be a way forward for businesses, and hard-pressed authorities making sites available and creating jobs in other places.
A redundant, modern barn in the green belt has been allowed conversion, lowering the walls by about 50%. Converting it to a more conventional house reduces its bulk and obtrusiveness, and would not undermine the character and appearance of the locality, leading to more openness and visual amenity.
Is it in a sustainable location? This looks like an opening for an entrepreneur.
DCS No. 43226270
Best option taken
A company building a golf course had taken to appeal the issue of materials used for building the course. The judge upheld the inspector's view that the waste proposed to be used at the course would be better directed to existing landfill sites in need of restoration, in accordance with the County Council's strategy.
There are a number of options to be assessed in deciding on the Best Practical Environment Option. Materials are a matter for planners
CO041/2005
Building society no help to vitality of town centre The change of use from a discount clothes shop to a building society office, in a town centre has been ruled out, because it would lead to a predominance of non-retail uses and undermine the centre's vitality.
The P.A. is faced with the alternatives of a dead frontage of the increase of a non-retail cluster. Many country towns are faced with the dilemma that former shops are worth much more as domestic premises. This is where politics and planning share territory.
DeS No:100037964
An inspector has rejected an appeal over a car dealership extending by about 50% into an adjoining field, to facilitate movements on site and add 110 parking spaces. Additional landscaping had been offered. He concluded the proposal would extend built development into the countryside, and the screening would be inadequate, especially in winter. An increasing problem; but is a business park site the solution?
DCS No: 39456213
An attempt to site 22 park homes in a disused quarry on the edge of village and conservation area has failed. The inspector found that a 27% increase in size is not a small-scale development in a village. It would also have affected the view though only slightly.
It is the arithmetic that is important here. The inspector was prepared to accept such dwellings as part of overall housing provision and a low-cost solution to housing shortage. DCS No: OT100-043-B01
An inspector has allowed a care home for mentally ill elderly peopleon th edge of a sett!emement in North Yorkshire. The county council had recorded conserns about the local housing market's ability to meet the needs of older people needing residential care and their affordability. Though there were limited facilities available in the settlement, it has bus serices and could supply a significant proportion of the necessary staff.
DCS No: 100043245
Court agrees that condition offered is not adequate
A developer seeking to build on a small town's football ground had failed to enlist the Inspector's support for use of a condition, as a means of securing the creation of a new pitch. The deputy judge agreed with the inspector that the mechanism would create too much uncertainty.
Conditions need to be enforceable.
CO/1742/2OO5
There are conditions and CONDITIONS
A development had been begun in 1989 (!) and the appellant sought confirmation of the lawfulness of continuing building. But it had been begun without approval of matters controlled by conditions, e.g. landscaping and materials. So the council had enforced. The inspector decided that there are some conditions which go to the heart of permission and have to be complied with, before agreement is reached on more detailed matters. He quoted two legal precedents.
It would defy common sense if this were not the case.
Des No:100037938
Neighbourliness and equity. In the High Court, the judge struck down a permission to build. The applicant gained permission after declaring that he had informed neighbouring owners of part of a driveway, of an application to build, as the Council had required. The neighbours claimed not to have received the notice. He held that the permission was procedurally flawed, and that there is a distinction between failure to inform known and unknown owners. ‘To allow it to stand would come close to undermining planning procedures.”
No comment!
Ref CO/2598/2OO4
Barns capable of conversion without substantial alteration on the fringe of a settlement can be converted, where a proposal for three dwellings had been turned down on highway grounds. A reasonable effort had been made to market the property for a business use, and it could not serve for community use. The council was concerned that such development might affect continued or expanded agricultural or commercial use of the neighbouring site.
The Government's housebuilding programme will bring about many such conflicts between preservation and long and short term ambitions, and with it many unsatisfactory compromises. Potential purchasers will need to recognise them and be tolerant.
Fluid policies; uncertain results; political pressure
This appeal relates to the evolution of a new settlement and to sustainability. The master-plan had limited numbers to 750 and density to 20 dwellings per hectare. Building had begun. The appellants proposed to increase densities to 40 p.h. for the un-built remainder, taking up the final numbers to 880. The council had two concerns: the effect of the higher density on the periphery of a countryside settlement, and the effect on the emerging Local Development Framework's land allocation projections. But the inspector noted that a sensitive and appropriate design could be produced and that the master plan's densities were not in accordance with PPG3. So he allowed the change.
How old was the master plan and what were its parameters? How long before the social impact shows, and who or what will evaluate it? (Presumably the estate agents.) What is a windfall?
Can this be called planning?
DCS: No: 1 00038962
An inspector has upheld enforcement against a utilitarian, galvanised steel flue, supported by crude angle irons on a restaurant in a Suffolk conservation area. The appellants argued that they had been prevented from putting their case at hearings and that the council had acted intrusively. The inspector noted that they had been allowed to present their case and that the council had a duty to investigate in the public interest.
Why buy a listed building in a conservation area in the first place, if you do not intend to keep up standards?
DCS No: 35824944
A building containing 120sq.m. of space had been subject to a condition requiring it to remain part of the main dwelling. Its size prevented it from being re-absorbed into the main dwelling.
The Council wished to see it used for alternative business, tourism, sport or recreation. The inspector supported its release for a house because that would be more sustainable in that it would generate significantly fewer car trips through a small village.
There will be many a barn attached to a coaching inn -even ones converted into bowling alleys that this could apply to, when village centre pubs cease trading and don't compete in the restaurant business. Sports' facilities should be purpose made, or they will soon become redundant for several possible reasons. One problem that will arise is where to put a car, if there has to be one.
DCS No: OT100-043-496
Green Belt and AONB take precedence
An application from a major scientific research company has not been supported by the inspector, in an area of scenic importance. The company had already expanded, in 1984, having been on site since the 1940's. The company wished to expand further, to include an auditorium, restaurant and 30 room lodge, with parking. It was argued that the local hotels were inadequate. The inspector recognised the importance of the scheme but found that the lodge would cause unacceptable harm, so the whole application failed.
A pity that compromise seems not to have been possible. But surely there is no need to keep all the profits on site! This appears to be an opportunity for someone to develop appropriate visitor facilities somewhere in the vicinity, if they are needed.
DCS: 100031965
A large sheme including replacement of inappropriate school and memorial hall buildings and 22 affordable homes, on three different sites in a village in the green belt, has not had the inspector's support. The local development plan specifically excludes. green belt land from the rural exceptions policy. The benefits of the scheme did not in her view outweigh the urbanising effect. Although the benefits would amount to very special circumstances they did not outweigh the the harm. The weakness of the case was the housing needs survey which failed to establish that all the needs should be met within this village or on the green belt site.
DCS No:100042860
Gypsies?
The Court upheld a County Council's eviction order. Settled accommodation had been offered and refused. The families asserted that the proposed new legislation would make it a requirement to assess need and make provision accordingly. However, the families had become travellers a few years ago, so the offer was reasonable. They were not ethnic gypsies.
The two factors the judge had arguments. in mind are new to the arguments. ODPM's advice does to not yet amount to law. Would it apply to those who are not ethnic gypsies, and to others who have lived settled lives including abroad?
CO/1842/2005
Housing needs survey essential
ODPM has supported an inspector's decision that a housing scheme on AONB land between two villages is not to be preferred to a golf driving range, although it was claimed that it offered much-needed affordable housing. Special circumstances had not been proven in the absence of a housing needs survey. Another factor is the price level of the affordable housing in such a context. Who would be the provider? This might make a useful study of the principle of strategic gaps
DCS No: 100037882
The ODPM has supported an inspector's refusal of planning permission and listed building consent in a conservation area in Wiltshire, over an application for a modern house in the grounds of a 2* house. The council claimed that the scheme would destroy medieval burgage plots and entail the removal of brick walls surrounding the existing dwelling. The inspector said the scheme would change the area's open character and compete with nearby buildings.
Was it the unusual level of listing that caused this decision? Brick walls (unless they follow the lines of an earlier lay-out) don't seem to relate to burgage plots. How many late medieval towns blotted out the footprints of earlier ones? How many Georgian ones did it again? Surely quality should be the criterion.
Increased density refused
In another instance, too, DPM has agreed with his inspector that the openness and quality of the area would be undermined, and a well landscaped, visually acceptable result would not arise, if a low-density permission was superseded.
Following policy guidance about density, there are sure to be many such applications. Will it be possible to log the professional time spent on them?
DCS No: 100038710
A recent decision in central London may have implications elsewhere. It related to overlooking of moorings of barges, but it could have implications for many riverside situations. The inspector decided that a minimum of 25 metres was needed between overlooking windows and the barges, to protect the privacy and amenity of residents in the flats.
DCS No: 100043717
Developers have won an appeal over proposals for a town centre site. The inspectors drew on national advice that supports good design but urges authorities not to concern themselves with detail (except where significant!). The scheme, though “different” would make a positive contribution to the street scene, replacing car-sales on 0.5 hectares.
For the Inspectorate, or reformed CABE?
DCS No: 43853215
The Structure Plan's spatial strategy had already allowed for the building of 3,300 dwellings in Cambridgeshire, and the developers sought to increase this by building at higher densities. However, the panel had considered the size of the settlement should be reviewed through the framework because the location is not very sustainable.
When land supply is tight in the eastern region and permission has been granted, there is an obvious temptation to try for more, but with facilities, infrastructure and conditions organised, it is not the time to cram an unsustainable location. Though this particular appeal is related to the specific context, and the subject of an Inquiry, the principle could be important.
DCS No:100038109
Listed Building Conversion Supported
Viability and vitality govemed the inspector's thinking, when he supported the applicant in this case. A grade 2 complex of hotel, bars and commercial units, lacking car-parking space, a short walk from the town centre, its lay-out limited the services it could offer. He decided that the long-term interests of the building were best protected by allowing conversion to commercial usage on the frontage, and four flats and two shops.
Lots of towns have such problem buildings at their heart, and they are often much loved. There is a problem when they are of sufficient quality to be listed. So a dispassionate Solomon may be needed. The problem also arises in reverse, with Edwardian buildings that have not been listed, but are familiarly loved, but unprotected unless in a C.A.
DCS No: 38130676
The High Court has supported a developer and an inspector regarding demolition of a "locally listed" Edwardian house in Surrey. The judge agreed that being neither in a conservation area nor on the statutory list, it could be demolished to make way for a block of flats. In the judge's view the main issue was not the loss of the building but the impact of the new one on the surroundings. He said the applicant did not need to demonstrate exceptional circumstances.
So it appears local listing has no teeth. It did not acquire the necessary legislative backing, and the time and effort put in by a fast-moving L.A. has been wasted thus far. How many more significant buildings will be lost before effective legislation is in place in the new scheme of things? It has not found a slot in the new Act.
CO/6042/2004
Harmful Decking in the Green Belt
The Environment Agency sought enforcement against decking overhanging the riverbank in this instance. The inspector agreed with them that a buffer zone would allow natural processes, whilst the decking prevented inspection and maintenance of the bank and created shade that inhibited growth and made the bank vulnerable to erosion. Whilst he acknowledged that decking per se was not objectionable in the green belt, the scale of this was also significant.
In this case roughly half the garden is/was covered with railings to just short of one with metre above the lawn. Perhaps there needs to be some advice about proportions ?
DCS No: 50040706
Flood risk
A local plan had proposed several sites at risk of flooding, in South Wales. Plans were called in. The risk could be reduced by protection and mitigation measures. However, the Assembly, relying on Technical Advice Note 15 concluded that the risk in highly vulnerable areas is the overriding factor.
Better safe than sorry.
DCS No: 100037164
Listed Building Conversion Supported
Viability and vitality govemed the inspector's thinking, when he supported the applicant in this case. A grade 2 complex of hotel, bars and commercial units, lacking car-parking space, a short walk from the town centre, its lay-out limited the services it could offer. He decided that the long-term interests of the building were best protected by allowing conversion to commercial usage on the frontage, and four flats and two shops.
Lots of towns have such problem buildings at their heart, and they are often much loved. There is a problem when they are of sufficient quality to be listed. So a dispassionate Solomon may be needed. The problem also arises in reverse, with Edwardian buildings that have not been listed, but are familiarly loved, but unprotected unless in a C.A.
DCS No: 38130676
A proposal to develop a new village at the centre of a former armed forces base in Shropshire has been rejected. It would include a village hall, a shop and a green on less than 2 hect. The inspector shared the council's view that it would detract from the openness of the area. The inspector noted that the parties were in discussion about affordable housing, but concluded that the development would not be small-scale and this did not allay her concerns about the effect on the openness. Other sequential sites had not been explored.
DCS No : 100042767
Don't be surprised if this one reappears at a higher level. As the armed forces are re-organised and some bases are abandonned there are a lot of sites to be utilised and most will be in the countryside. Do they not present great opportunities?
Live and work on the edge
An inspector has supported a scheme for three live-work units on re-used ground outside the boundary of a village in Dorset. The area would be harmed, he argued, if PPG 3 were followed, entailing 26 homes. The three new homes would be built from low-impact, energy efficient, renewable materials, and near enough to the boundary to be acceptable.
And without being a precedent for sprawl. Please see our continental neighbours for other examples.
DCS No: 40557930
An inspector has rejected development of open space on the edge of a village because of its value as an informal play space for children of the neighbouring estate, in a village with a significant amount of family housing. He reckoned that there is a significant shortage of play space otherwise in the village. He also placed importance on the setting of a river.
A brave decision. Many such spaces will come under pressure, especially in the S-E. A prize for identifying all the issues involved (?)
DCS No: 100038641
And another.
Another inspector has rejected an appeal over green field on the edge of an Oxfordshire village, saying that the prominent site adjoined housing on only one boundary and its position on steeply rising land on the edge of the village would harm an area of high landscape value.
How will the designation of Landscape of High Landscape Value be carried forward in LDF's? This is not just an issue for CPRE, it concerns smaller Civic Trust settlements and above all ASHT A V members. How would it have affected Bath; how is it affecting Market Harborough and Dorchester?
An inspector has rejected a scheme to replace houses with denser development on two grounds. The first was that the proposals failed to make adequate provision for people with disabilities. The developer countered that the designs met the requirements of building regulations, though they conflicted with local plan policy. The second was the unacceptable impact the scheme would have on the character and appearance of the area.
When will building regs. catch up?
DCS No: 42581305
Planning Gain The applicant appealed against conditions the local authority wished to impose, on development of six homes in a Berkshire town. The applicant agreed to make contribution to highway improvement in the immediate area, and towards provision of public open space. The inspector agreed that it was not reasonable to require a contribution to improved cycleway and highway alterations that were neither directly related to the proposed development, nor to library facilities.
At what stage or level does the creation of new or improved facilities for a whole community become a reasonable demand? The question continues to arise when it relates to school places and other aspects of public provision.
DCS No: 100037391
Planning unit when is it - when isn't it?
An owner of a caravan had moved it from one side of the river, of which he owned both banks. It had been in position since 1983. In the inspector's view, without abandonment or an intervening use, it had been lawful since 1993.
Would not the numeration of an old land-use map have clarified this? When does a stream become a river?
DCS No: 100037490
The DPM has approved six homes on an employment site in a green belt, following a call-in enquiry. The business will relocate to modem premises, away from nearby houses. The openness of the area will be increased and the character of the area improved. This despite lack of need to release further sites for housing.
In this instance there was no disagreement about what constitutes a bad neighbour.
DCS No:39138094
Procedure must be followed
The High Court has rule that the ODPM's office cannot reinstate an appeal once it is withdrawn. This related to failure of a council to determine reserved matters in the prescribed time. The appeal was later withdrawn on the assumption that the application would revert to the council's jurisdiction. A local resident challenged it when the appellants wanted it reinstated because the council could not proceed. The judge agreed with the challenge: it would be tantamount to allowing a second appeal or an extension of time under which reserved matter could be approved.
A lot of planning officers will be grateful for this judgment. A watchful resident has come to the aid of council' who could be caught up in interminable negotiations.
C05679/2004
A answer that may be of use and importance to ASHTAV members has appeared in response to an enquiry and been published in the R.T.P.!. ' s Planning magazine. It concerns an application by a take-away owner to remove a Condition controlling its hours of opening, so it could serve take-aways throughout the hours for which it is licensed. The applicant argued that since the Planning Authority and the Licensng Authority were one and the same, and no problems had arisen with the police and environmental health officers about the licence, the application was allowable. This proposes the question of which laws take precedence.
The answer is that the legislation is complementary. Matters arising under licensing laws are Material to Planning Permissions, but the more stringent controls may be applied in the interests of land use and environmenal impact. Cases were cited from London earlier this year (DCS: 100043430) where an inspector refused to allow a pub to open after midnight though the licensing authority had permitted opening untiI3.30pm. The inspector held that the planning system requires a broader approach to local amenity than the licensing one. In another case, in Hampshire, (DCS 100038087), the inspector held that controls under the 2003 Act of noise levels do not remove the council's duty to ensure that land-uses are compatible. He also noted that PPS 6 advises that planning authorities should manage the night-time and evening economy.
It matters little whether subsequent legislation is used to tidy up ill-drafted law. Planning Policy Statements carry more weight than P.P.Guidance once did.
Prescott follows a
Roman precedent
A scheme which re-routes an A road has been allowed in Bedfordshire. Re-routing and realignment of a number of junctions, to include landscaping and trees makes possible an urban design scheme to provide a safe, and attractive environment for pedestrians and motorists on a 42 hectare site that was an RAF base.,
Admirable.
Better than closure as has happened in other counties.
DCS No: 100038904
Despite being in the green belt, renewal of this temporary permission was supported by the inspector. The large horticultural holding retains 13 caravans, under the government’s seasonal workers scheme, there being no alternative sites. But it is only until 2007.
What happens then? DCS No. 57173397
Village shop conversion permitted.
A conversion to two flats of a village shop was supported by the inspector. It was said that it had been impossible to sell it when it was a going concern and temporary closure followed the calling in of a loan. Two other shops in the village could absorb the trade. The council had suggested reducing the trading area, which he judged would reduce viability.
Small towns and villages can be faced with continual loss of shops, but after many years work the owners deserve some sympathy. We would need to consider this in the context of the viability of the whole settlement. And the longer term? Des: 100037868
Special Needs
Where, oh! Where?
An appeal has failed because a special needs facility needing to expand lies in the countryside. The inspector decided it did not meet the definition of housing designed to meet local needs. Whilst recognising the need to provide for special needs accommodation, he concluded that there was no evidence to demonstrate that it had to be met on the proposed site rather than in an existing settlement.
How many of those needing a half-way house before moving /returning to general purpose housing would want to be in the countryside? Does there need to be some explicit legislation to cover this need. Could it be achieved without more joined-up government? However, joined up thinking could be draconian. In the case of an asylum- seekers centre, the inspector supported the L.A. 's refusal.
DCS No: 100038929
The firm had bought the site on the understanding that there would be provision for 11 open market houses and five affordable units. Subsequently, the RSL lowered the price they were prepared to pay and the firm decided that they could not afford to build more than three, and a planning officer recommended the approval of this. But the inspector reckoned that the council was justified in requiring the original number, based on the profit margin.
What is a fair profit? How much of this case is commercially sensitive? Are there Government guidelines? Should there be? How much is attributable to severe shortage of such accommodation?
DCS No: 100038944
The appellants living in the converted stable had lived in a nearby house. They wished to live near horses and fields. The inspector ruled that there was not an established need for a house on the site, in the countryside. That they were Gypsies did not influence the decision.
Not surprising, and not unfair.
DCs No: 35378304
The inspector decided that straw-bale buildings coated in mud were not houses, though mainly used for human habitation. He set aside the change of use enforcement notices, except for one built in 1998. He rejected claims that human rights would be infringed. He held that this had to be balanced against the protection of the public interest of this and succeeding generations.
Do human rights belong only to individuals or to communities?
DCS No.39379401
This inspector has resolved a long-standing conflict. The applicant had permission for an agricultural building, a polytunnel and a windmill. She moved from her caravan to a straw-bale house, which was subsequently demolished. Then she rebuilt it. Despite her livestock and organic food production the inspector saw no need for a dwelling on site. But he decided to take into consideration that it was her home, and her health. So the solution was to grant a personal permission, as the house could be demolished once she ceased living there. And he stressed that this did not provide a precedent for further proposals in the countryside.
(Newspaper reports of the case indicate much partisanship.) Who would want to be a planning councillor in these circumstances? What if the next case involves system building - equally removable? How different from the many agricultural, nissen-hut type buildings still standing in the countryside? This innovative building also happens to be near to a sensitive settlement. Should that affect the outcome?
DCS No.5145288
Two Appeal judges have granted leave for a developer to challenge a High Court decision that lack of public support for a development is a material consideration. The challenge concerned sports’ grounds and recreational facilities that the developers sought to change to a cemetery and crematorium, in the green belt. An inspector had said this would reduce the range of local facilities. One judge said that whether a developer is required to show that there is public support for a development is an important point of principle that should be considered by the higher court. He considered that the developer was right to raise this matter and it justified a full hearing.
This goes to the heart of new planning procedures. Whilst Government is anxious to promote speed and certainty, it also seeks public consultation, and consultation almost inevitably takes up valuable time, unless it precedes the application and thus does not count towards the measured time: which is no comfort to the potential developer. Who but the funeral business could carry things thus far? How does the local plan count in this? Where was the judge’s tongue? The conclusion of this case will be of great importance.
Ref: C1/2004/2527
The inspector has rejected the demolition of farm buildings in favour of a block of houses, although the change would more than halve volume and footprint. The inspector took into account the likely manicured appearance and paraphernalia of domestic development, which would be incongruous in the countryside and adversely affect the setting of a grade 2* farmhouse.
One of the dilemmas of diversification. Expensive conversions? Enabling development? Where does an Authority draw the line? How will the wording in LDF operate?
DCS No : 42914709
Reversal of Wealden District Council's loss at law
A recent copy of ASHTAV NEWS carried a report of the decision by the High Court to support appellant developers in their demand that the District Plan Review be carried to its conclusion, whereas the Council had decided to abandon that procedure in favour of preparation for an L.D.F. The RTPI report on which it was based made no mention of the status of the addendum to PPS 1, advising that an advanced Review can carry weight. The LDF will , of course, be guided by even more recent Govemment guidance, and therefore likely to produce some different results. The consequences of that decision for all authorities could have been very serious, in expenditure and in out of date decisions. However, Wealden has taken the case to the next stage, the Court of Appeal. The High Court ruling has been overruled. Lord Justice Mummery said: "The council had a discretion to withdraw the local plan review when it did and for the reasons that it did. It acted in a way that was consistent with the aims of planning legislation." The cabinet member for sustainable development welcomed the decision: 'The Court of Appeal upheld the the council's decision to adopt an economical and sensible approach to the logjam that was developing in the strategic planning process.
The developers were refused permission to appeal to the House of Lords. That does not prevent them petitioning the law lords directly for an appeal hearing, if they think it worthwhile. It may be argued that the Court of Appeal's ruling amounts to an interpretation of Government's intention in making new law, and does not rest on quotation of codified law. There have been other occasions when the Courts have taken the opposite line, when appellants have attempted to rely on in-preparation, unadopted plans, and other occasions when the appeal rested on emergent Government guidance, even a White Paper, when the Court has preferred to base its judgment on existing, adopted plans, regarding current proposals as challengeable.
It would be uncharitable to rejoice too much at the Court's conclusions. Any business must plan ahead. Despite accusations that there would be less of a housing shortage if there was a smaller landbank, the financial implications for firms involved in acquiring land and the timing of its release, already controlled to a large extent through plans, could be serious. Some land already bought may now not qualify, the criteria having been changed, and much land will have to be worked a lot harder, possibly at less profit. (It is also why windfall sites are so often arising at appeal.)
Nevertheless, it would be impossible to move planning forward to meet new imperatives such as sustainability and the sequential test, preference for use of brown-field, affordable housing, and climate change, if the principle enunciated by the Court of Appeal did not hold and developers were able to rely on holding councils to out of date plans. Many other authorities must have been awaiting this judgment with trepidation and must be relieved that it has been brought forward so swiftly. It even appears that we have seen some joined up departmental thinking at Govemment level - what else could have appeared so swiftly on the Court of
Appeal's agenda? Ultimately, it boils down to whether of not to have planning. The quality of life would be better for everybody - absolutely everybody- if planning legislation did not come along like legendary London buses. But failure to include a sentence in the Bill brought forward and to remedy that omission, on the part of Government and Opposition, will have cost local government dear. It might even be possible to do a rough calculation of how much time has been spent on unnecessary work by Authorities obliged to turn P.A. 's round to a timetable, whilst time has been lost on moving to the new regime or taking forward the now obsolete one. None of this bodes well for the countryside and small towns, where there will be yet more complication involving consultations with, among others, the beleaguered staff of the revamped English Heritage who will be answerable to new bosses in a new structure. Or am I wrong about where the great majority of Grade 2 buildings and Conservation Areas are to be found?
Public Support and
Consultation
Two Appeal judges have granted leave for a developer to challenge a High Court decision that lack of public support for a development is a material consideration. The challenge concerned sports’ grounds and recreational facilities that the developers sought to change to a cemetery and crematorium, in the green belt. An inspector had said this would reduce the range of local facilities. One judge said that whether a developer is required to show that there is public support for a development is an important point of principle that should be considered by the higher court. He considered that the developer was right to raise this matter and it justified a full hearing.
This goes to the heart of new planning procedures. Whilst Government is anxious to promote speed and certainty, it also seeks public consultation, and consultation almost inevitably takes up valuable time, unless it precedes the application and thus does not count towards the measured time: which is no comfort to the potential developer. Who but the funeral business could carry things thus far? How does the local plan count in this? Where was the judge’s tongue? The conclusion of this case will be of great importance.
Ref: C1/2004/2527
The Secretary of State has overruled an inspector and granted permission for 300 homes in a green wedge in Berkshire, despite policy that it be retained. The scheme had the council's support as a means of providing larger affordable homes in the South-East.
DCS No: 100043779
Wedge 2
The Secretary of State has supported an inspector's recommendation to refuse an application for development on 5.6 hect. of land in a strategic gap in Hampshire, because it would extend built development towards the sea and lose grade 1 agricultural land. 50% of the homes would have been affordable. She also found that to grant it would prejudice the preparation of the Local Development Framework.
DCS No: 100043449
Both applicants were able to quote precedents. There were significant differences. All applications are unique in this small island. There will need to be great skill in design to ensure that the first of these applications does not lead to cheap building that is difficult to maintain and might become a slum in future. Perhaps an affordable house can become a nest-egg.