Boat Plans Pdf | Amalgamating two or more dwellings

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Many readers are no doubt aware that section 55(3)(a) of the 1990 Act declares that the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change of use of the building and of each part of it which is so used. However, there is no provision in the 1990 Act itself dealing with the converse, where two or more separate dwellings are combined to form a single dwelling. In principle, it might well be argued that such an amalgamation of planning units is covered by section 55(2)(f), because this refers to buildings which are used for a purpose of any class specified in the Use Classes Order and (as a result of the amalgamation) the building is being used for other purposes within the same class.

However, the judgment in Richmond upon Thames LBC v SSETR [2001] J.P.L. 84 suggested that a change in the character and impact of the use in planning terms might nevertheless amount to a material change of use. This need not be confined simply to the physical or environmental impact of the change, but may also include other factors, such as the loss of a certain type of accommodation or facility that the previous planning unit provided. The Richmond case was concerned with the conversion of a property from seven flats into a single dwellinghouse. It was held that a judgement has to be made as to whether the amalgamation of the planning units has ‘as a matter of fact and degree’ resulted in such a change in the character and impact of the use as to constitute a material change of use in planning terms.

This point had previously been made in the Court of Appeal’s decision in Wakelin v. SSE [1978] JPL 769. That case confirmed that the creation of a new planning unit out of an existing planning unit would not always result in a material change of use, but it may well do so if it is (to use the words of Lord Denning) “not in accordance with good planning policy having regard to the surrounding circumstances”. Wakelin was in fact concerned with the creation of a separate dwelling out of an existing dwelling (now covered by section 55(3)(a)), but it clearly applies (as does Richmond) to other types of use.

Richmond involved the loss of no fewer than six separate residential units, and it was held that the inspector had been wrong to ignore this point in considering the material character and impact of the resulting change of use – in other words, it was not simply the environmental effect of the change that had to be considered but also its effect in relation to planning policies seeking to resist the loss of small residential units. On the other hand, it should be clearly understood that the amalgamation of two planning units, for example by combining two existing dwellings into a single unit, need not automatically be treated as a material change of use amounting to development. This will have to be a matter of objective judgment depending on the particular facts in each case.

It seems that a distinction is to be made between, on the one hand, situations such as those in Wakelin and in Richmond, where a planning unit is either subdivided or amalgamated with another planning unit and, on the other hand, the effect of a change within the planning unit where, both before and after the change, the use or combination of uses falls within one and the same use class. The latter is illustrated by the judgments in Brookes & Burton Ltd v. SSE [1977] 1 WLR 1294 and Eastleigh BC v. FSS [2004] EWHC 1408 (Admin).

I confess that I have always had misgivings about the Richmond judgment, as it does not seem to sit comfortably with section 55(2)(f), but I have explained above how it may be rationalised by arguing that section 55(2)(f) impliedly refers to the use of a single planning unit, whereas in a case such as Richmond one is dealing with two or more pre-existing planning units, so that (the argument would go) section 55(2)(f) does not apply in such a situation.

My reason for discussing the Richmond case now, some 15 years after it was decided, is that a planning inspector in dismissing a recent LDC appeal (under section 195) has relied on Richmond as the basis for the rejection of the lawfulness of the development in question. The appeal had clear similarities with the Richmond case. It involved a six-storey house in Central London that had been divided some time ago into four flats. The amalgamation of the four flats to restore the building to use as a single dwelling would involve the loss of several units of accommodation that the previous planning units provided. The inspector therefore considered, in accordance with Richmond, whether the amalgamation of the planning units would ‘as a matter of fact and degree’ result in such a change in the character and impact of the use as to constitute a material change of use in planning terms.

This necessarily required some consideration of policy issues, including the NPPF and the London Plan, both of which seek significantly to increase the supply of housing in the area. The mix and size of the current residential units in the building was therefore relevant from this point of view, and these were more suited to meeting identified housing needs than a single large dwelling would be. These considerations were sufficient, in light of the judgment in Richmond, to bring about a significant change in the character and impact of the use in planning terms, and thus would constitute a material change of use, and would not therefore be lawful.

© MARTIN H GOODALL


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Boat Plans Canada | Agricultural dwellings the operational need test

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On Monday 2 April 2012 , I published a post entitled “Agricultural development after the NPPF” in which I suggested that there need not be any change in practice relating to the provision of agricultural workers’ dwellings, and the methodology for assessing the functional need for such a dwelling, nor need there be any change of approach in relation into the imposition and removal of agricultural occupancy conditions.

I felt that without referring to the detailed guidance set out in Annex A of PPS7, it would be difficult in practice to give effect to the policy set out in paragraph 55 of the NPPF, which simply provides that isolated homes in the countryside should be avoided unless there are special circumstances such as (among other things) the essential need for a rural worker to live permanently at or near their place of work in the countryside. Unlike PPS7, the NPPF offers no guidance as to how “the essential need for a rural worker to live permanently at or near their place of work” is to be assessed in practice, whereas Annex A of PPS7 was notably prescriptive in setting out the criteria that would have to be met in order to prove that need.

I concluded that De-CLoG could avoid any doubt and confusion which the withdrawal of PPS7 may have caused by re-publishing Annex A of PPS7 in the form of a Circular. Failure to do so, I surmised, could lead to legal disputes which might otherwise be avoided.

I am grateful to a correspondent for drawing my attention to just such a dispute. This was an application for judicial review of a planning permission in the High Court in R (Embleton PC) v. Northumberland CC [2013] EWHC 3631 (Admin). It was what can only be described as a ‘root and branch’ attack on the grant of planning permission in this case, which included a temporary permission for an agricultural dwelling. I propose, however, to confine myself to the challenge regarding the operational justification for an agricultural dwelling. This, as well as every one of the other grounds of challenge, was rejected by the court.

It was common ground between the parties that government guidance was a material planning consideration to be taken into account by the Committee in reaching a decision. The relevant guidance was contained in PPS7 prior to 27th March 2012 and paragraph 55 of NPPF thereafter. Under Annex A, paragraph 12(iii) of PPS7 the applicant had to provide clear evidence that the proposed enterprise has been planned on a sound financial basis, whereas Paragraph 55 of NPPF is merely expressed in the terms I have quoted above. Thus, the judge observed, the guidance in paragraph 55 of NPPF is significantly less onerous than it was in PPS7.

The judge accepted that the test under paragraph 55 of NPPF is different from the test under Annex A, paragraph 12(iii) of PPS7. In particular he did not accept the claimant’s submission that the NPPF requires that the proposal is economically viable. As the LPA pointed out, this was a temporary permission lasting for only 3 years. The NPPF test simply requires a judgment of whether the proposed agricultural enterprise has an essential need for a worker to be there or near there [although, in my own view, this seems to beg the question as to how that essential need is to be objectively assessed]. In the event, the judge agreed that the evidence was that there was a need for a rural worker to take care of the livestock once calf rearing commenced. In his view the Committee were entitled to accept that evidence. It was not an irrational decision.

His lordship equally agreed that the decision was not invalidated by the failure to provide the agricultural expert’s figures to the Committee. The figures were not available at the date of the meeting. It was not in dispute that the Committee were provided with an expert report and that a principal objector had the opportunity to address the meeting. In the course of his submissions the objector criticised the expert’s report, so the issue was before the Committee. The Committee were nevertheless entitled to reject that submission and plainly did so.

The learned judge held that, whilst it was no doubt open to the Committee to reject the planning application it could not in his view be said to be irrational to have granted it. It was open to them to hold that there was an essential need for a rural worker to live permanently at or near the livestock building. It was a matter for their judgment whether such a need could be satisfied by a short term let. A short term let is terminable after 6 months, which is far shorter than the 3 years for which the temporary permission was granted. In those circumstances the decision to grant the permission could not in his view be said to be irrational or unreasonable.

This judgment would tend to suggest that my supposition that an objective test substantially similar to the detailed test required by Annex A to PPS7 would still have to be applied in order to give effect to paragraph 55 of the NPPF may not be supported by the courts, in light of the much less prescriptive language used in that paragraph of the NPPF. I cannot believe that this is what ministers intended, but it would appear that their insistence on cutting the statement of ministerial planning policy to the bare bone may have come back to bite them.

[UPDATE: In light of the Court of Appeal decision in Redhill Aerodrome v. SSCLG (see now Interpreting the National Planning Policy Framework (6 November 2014), there must be some doubt as to the correctness of the approach taken by the High Court in Embleton PC.]

© MARTIN H GOODALL

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Boat Plans Nz | Green Belt policy – the need for reform

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Last week I came across a useful contribution to the Green Belt debate by Peter Village QC and Jonathan Darby, which you can access at http://www.39essex.com/docs/general/pv_and_jda_green_belt_article_final_.pdf

They call (as I and other commentators have done recently) for a sensible rethink of Green Belt policy, rather than the die-hard defence of existing Green Belt boundaries that ministers have lately adopted (undoubtedly for what they perceive as their short-term electoral advantage in the run-up to the General Election), irrespective of its proper role and value in policy terms, and irrespective of the consequences of such an unyielding approach in terms of unbuilt homes to meet the urgent needs of our population.

There are two important points that must be understood about the Green Belt. First, our Green Belts have been massively expanded within the past 30 to 40 years. The Green Belt was never intended to cover such vast swathes of land as it does now, and it really does need to be objectively reviewed and rolled back in some areas. Secondly, until the late 1980s, there was some flexibility in the application of Green Belt policy.

This was well illustrated by the judgment in Cranford Hall Parking Ltd v. SSE [1989] J.P.L. 169. Relevant policy at that time was set out in Circular 14/85, which was couched in language not dissimilar to later policy statements in PPG2, yet not in such absolute terms. The Circular pointed out quite clearly that the fact that a site was Green Belt land did not in itself constitute a clear-cut and sound reason for refusing permission. The court, in quashing an appeal decision which had refused planning permission for development in the Green Belt, held that the Inspector should have considered whether or not this development would bring about demonstrable harm to the Green Belt. Thus (at that time) development was not automatically unacceptable in the Green Belt; it was a question for the judgment of the decision-maker.

A similar decision was reached in Barnet Meeting Room Trust v SSE (1990) 60 P. & C.R. 137. In that case an Inspector had recommended that the Secretary of State should allow an appeal against the refusal of development in the Green Belt in these terms:

“I conclude that the development would not significantly detract from the character and appearance of the area, nor significantly threaten the integrity of the Metropolitan Green Belt, and that positive benefits would flow from the proposed landscape treatment of a former derelict site.”

The Inspector did recognise that, in a strict sense, the proposal would be unlikely to “preserve or improve the open nature of the area” in terms of the requirements set by para. 9.16 of the Greater London Development Plan. Nonetheless he recommended that on balance, and bearing in mind the established need for the development, the appeal should be allowed.

By this time, PPG2 in its original form had been published, and the Secretary of State’s decision letter, rejecting the Inspector’s recommendation, ended with the words: “The Secretary of State is of the opinion that, on balance, there are not the special circumstances to justify development in a Green Belt. Accordingly he disagrees with the recommendation.”

The Deputy Judge (Sir Frank Layfield QC) found that the Secretary of State had paid no great attention here to the need for consistency of decisions in comparable instances or to the need, when related decisions are cited to him, to provide reasons why those decisions should be regarded as either of no or limited value to the case under consideration. The learned Deputy Judge held that, very importantly in the Green Belt, the general presumption in favour of development applied (at that time) in favour of allowing applications for development as it did in other areas (relying on Cranford Hall Parking).

In that previous case there was a presumption derived from earlier circulars that were still current at that time that inappropriate development would not be permitted within the Green Belt and there were, no doubt, cases where the fact that the proposals were inappropriate and damaging to the interests of Green Belt policy would be self-evident. But the circular pointed out, quite clearly, that the fact it was in Green Belt land did not in itself constitute a clear cut and sound reason for refusing permission. The right approach was a presumption that planning permission would always be allowed which would be overridden where it was shown that the development would cause demonstrable harm to the Green Belt policy. In this regard, no reason or explanation had been given as to why the provisions of Circular 14/85 (which included the general presumption in favour of development) were not considered. Since development in the green belt was a question of fundamental importance, it was for that reason alone that this decision was quashed in the absence of adequate reasoning in that regard.

Those two cases were, of course, decided within a rather different policy context compared with that which obtains at present, and they have no practical application within the current policy regime; but they both serve to show that an alternative policy approach is perfectly workable, and would not involve a ‘free-for-all’ approach to development in the Green Belt. If the principles illustrated by those two cases were to be re-applied now (by means of revised ministerial policy on this issue), there would in future be an objective examination, as there used to be until the late 1980s, of the site’s ‘Green Belt value’, and consideration as to whether its development would cause demonstrable harm to the openness of the Green Belt (which is the primary objective of its designation as such). As I can clearly recall from the early days of my career as a planning lawyer, going back as far as 1979, appeals could be and in practice were allowed in appropriate cases where the site made no material contribution to the Green Belt and/or where its development would not cause any demonstrable harm to the openness of the Green Belt. The present rigid resistance to any development in the Green Belt, save only in the most exceptional circumstances, is unnecessary and undesirable.

© MARTIN H GOODALL

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Boat Plans Aluminum | Amalgamating two or more dwellings 2

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Those of you who follow the comments on various posts in this blog may have seen that Andy Rogers contributed a comment on my previous piece about the amalgamation of dwellings to form a single enlarged dwelling, in which he drew attention to another appeal decision in London last October that led to the opposite conclusion to that reached in the appeal on which I reported in my last article.

For reasons that I shall explain, I do not see any inconsistency between these two appeal decisions. I made it clear in my first article that the amalgamation of two dwellings (or in some cases, perhaps, more than two) will not automatically be a material change of use. A decision on this issue must necessarily depend on the facts of each case and on the relevant policy considerations that apply in that situation. I appreciate that people may be uncomfortable (as I am myself) with the proposition that what should in principle be an objective judgement as to the lawfulness of a change of use should be dependent in any way on the consideration of planning policies but, in light of the Richmond judgment, this would appear to be unavoidable in these cases.

The appeal to which my attention has now been drawn (3028049) was in the Royal Borough of Kensington and Chelsea and involved the amalgamation of two self contained flats to form one self contained residential unit, involving internal alterations. The appeal site was a mid-terraced property that was originally two houses, which had been amalgamated into one dwelling in 1949 and the building was subsequently converted into flats. The proposal involved the amalgamation of the flat at ground floor level and the flat above it on the first floor so as to create a single residential unit.

The main issue was whether the amalgamation of the two flats to create one residential unit would constitute a material change of use. The amalgamation of the two flats would have no material effect on the external appearance of the property and no harm would be caused to the character of the building or to the surrounding area. The Council did not allege that the proposed amalgamation of the two flats would have any effect on the character of the use of land other than through the loss of one residential unit. However, they argued that the “…scale of amalgamation currently under way in this Borough is having a material effect on a matter of public interest, namely it is significantly reducing the number of dwellings in the housing stock”.

The Inspector pointed out that prior to 2000 it was commonly accepted that a reduction in the number of dwelling units on land in residential use did not represent, and could not contribute to, a material change in use of the land. [Although it was not spelt out in the decision letter, this was by reason of the operation of section 55(2)(f) in the 1990 Act.] However, the judgment in the Richmond case, cited in my previous article, modified that view, and the Council sought to rely on this judgment in resisting the grant of an LDC in the present case.

The Inspector drew attention to the reference in the Richmond judgement to Mitchell v SSE [1994] 2 PLR 23, although it has always seemed to me that Mitchell was only of marginal, if any, relevance in the context of the Richmond case, because it dealt with an application for planning permission and was concerned with the material considerations that had to be taken into account under section 70, and so it would not appear to me to have been an appropriate foundation on which to base the judgment in Richmond (although that judgment might perhaps be justified on other grounds that do not depend on Mitchell, for example the passage I quoted in my last article from the judgment of Lord Denning in Wakelin). Nevertheless the Inspector accurately quoted the relevant passage from Richmond: “It is undoubtedly the law that material considerations are not confined to strict questions of amenity or environmental impact and that the need for housing in a particular area is a material consideration...…”. But he pointed out that, in order for it to be a material consideration, the need for housing must be expressed in and supported by local planning policy.

The Inspector observed that the High Court challenge in Richmond was successful because the Inspector in that case had failed to take into account a material consideration, namely the policy factor, which he considered to be “…a question of planning merit than of law”. The Inspector in the present case stated (correctly, in my view) that Richmond did not establish that the policy factor can be the sole determinative factor in an LDC case but one that must be taken into account with all other considerations. But, in the instant case, the Council was wholly relying on the policy factor.

The Inspector nevertheless, went on to consider whether this was a material consideration of any weight. Policy CH 2 ‘Housing Diversity’ of the Council’s Core Strategy (CS) states that the Council will, amongst other things, resist development which results in the net loss of five or more residential units. The proposed amalgamation of the two flats would result in the loss of only one residential unit. So the proposal did not conflict with CS policy CH 2. Saved policy H17 of the Council’s Unitary Development Plan (UDP) states that the loss of existing, small, self-contained flats of one or two habitable rooms will be resisted. Both flats had more than two habitable rooms, so the proposal did not conflict with UDP policy H17.

Policy 3.14 of the London Plan states, amongst other things, that the loss of housing should be resisted unless the housing is replaced at existing or higher densities with at least equivalent floorspace. The London Plan is a strategic plan and places an emphasis on the increase or preservation of residential floorspace rather than the number of housing units. This strategic objective is reflected in the LPA’s Core Strategy, but the relevant policy in this element of a local plan was considered in the passage in the decision letter referred to above. The proposed amalgamation of the two flats would not result in any loss of residential floorspace. The proposal did not therefore conflict with London Plan policy 3.14.

The Council had referred to similar LDC cases in a neighbouring London Borough but planning policy in place (or planning decisions made) in that area could not be imported to support the Council’s case. The scale of amalgamation in Kensington & Chelsea may be having a material effect on the number of dwellings in the housing stock but the proposed amalgamation of the two flats did not conflict with CS policy CH 2, UDP policy H17 or London Plan policy 3.14. The policy factor in this case, given that there was no policy conflict, was a material consideration of no weight. Given that the Council accepted that no harm would be caused to the character of the building or to the surrounding area, the proposed amalgamation of the two flats to create one residential unit would not, as a matter of fact and degree, be a material change of use that would constitute development as defined in Section 55 of the Act. Planning permission was not therefore required for the proposed use. The section 195 appeal thus succeeded, and the Inspector issued the requisite LDC.

I have no doubt whatsoever that this appeal decision is entirely compatible with the judgment in Richmond, and it clearly demonstrates the limits of what might be called “the rule in Richmond”. Re-reading that judgment myself while preparing this article has brought home to me the strictly limited application of that rule. One can see why it was applied in the appeal that I reported in my previous article, and on the facts of that case, that Inspector’s decision was also correct. In fact, my statement that the amalgamation of two dwellings (or in some cases, perhaps, more than two) will not automatically be a material change of use should perhaps be qualified, by saying that it will not be a change of use in the absence of clear policy objections, and that this in turn will depend the nature and scale of the proposed amalgamation. Clearly the amalgamation of only two residential units is going to be of less significance in policy terms than the amalgamation of a larger number of existing flats or houses, and is therefore rather less likely to be material in planning terms. Ultimately, of course, it is going to be ‘a matter of fact and degree’ in each case, taking all material considerations into account.

© MARTIN H GOODALL


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