an Inspector appointed by the Secretary of State for Communities and Local Government

Transcription

1 Appeal Decision Inquiry and Site Visit held on 10 July 2012 by Ahsan U Ghafoor BSc (Hons) MA MRTPI an Inspector appointed by the Secretary of State for Communities and Local Government Decision date: 23 August 2012 Appeal Ref: APP/A0665/C/12/ Land at Edge Grange, Grange Lane, Edge, Malpas, Cheshire SY14 7DZ The appeal is made under section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act The appeal is made by Windward Estates (North West) Limited against an enforcement notice issued by Cheshire West and Chester Council. The Council s reference is 10/10701/ENTPLN. The notice was issued on 2 March The breach of planning control as alleged in the notice is without planning permission the erection of a new dwelling in the position marked with a cross on the attached plan (the unauthorised development). The requirements of the notice are to demolish all of the unauthorised development and clear all associated rubble and materials from the land. The period for compliance with the requirements is 3 calendar months. The appeal is proceeding on the grounds set out in section 174(2) (c) and (g) of the Town and Country Planning Act 1990 as amended. Since the prescribed fees have not been paid within the specified period, the application for planning permission deemed to have been made under section 177(5) of the Act as amended does not fall to be considered. The Inquiry sat for one day. Summary of Decision: The appeal succeeds in part and the enforcement notice is upheld as corrected and varied in the terms set out below in the Decision. Application for costs 1. At the Inquiry, an application for costs was made by the appellant against the Council. This application is the subject of a separate decision. Matters concerning the notice 2. The parenthesis in the allegation should state the unauthorised building rather than the unauthorised development. The notice was interpreted on this basis and the substitution of the word does not mean it is fundamentally flawed. I have the powers under Section 176 (1) of the Town and Country Planning Act 1990 as amended (the 1990 Act) to correct or vary the notice. I am satisfied that the envisaged correction to paragraphs 3, 4 and 5 of the notice will not cause injustice to any party. Background information 3. The notice relates to a former agricultural Dutch style barn located in the countryside (referred to here as the pre existing building ). The relevant planning history is set out in the statement of common ground. The most

2 relevant part of that history is the planning permission granted on 21 January 2010 subject to conditions, which describes the proposal as follows: To convert and extend existing barn to form one dwelling and erect double detached garage 1. I will refer to this planning permission as the 2010 permission. 4. The approved drawings show that around 7.2 metres of the eastern section of the pre existing building, and 4.8m of the western section, were to be removed. Development commenced and the cladding above first floor, roofing materials, the bay on the east elevation, the alterations to the gable to the west, and the three bays to the north elevation were removed. The scheme involved the total replacement of the roof structure and alterations to the building s fenestration. The appeal parties agreed that the approved scheme would have included the retention of about 15% of the original external surface area of the pre existing building within two and five bays to the north and south elevations. 5. As work progressed it became apparent that the original barn had been built on the floor raft without adequate footings. Having obtained advice from the structural engineer, it was decided to totally demolish the pre existing building and to start afresh with new foundations to meet with current Building Regulations. The appeal on ground (c) 6. The claim was that the 2010 permission permits the demolition and rebuilding of the pre existing building. The appeal parties agreed that the main controversial issue to consider is the effect of the 2010 permission. For completeness, I will first set out the most relevant Case Law. 7. Generally, in interpreting planning permissions, the basic principle is that a permission should stand by itself and the meaning be clear within the four corners of the document. The public should be able to rely on a document that is plain on its face without having to consider whether there is any discrepancy between the planning permission and the application. In Miller Mead v Minister of Housing and Local Government [1963] 2QB 196 Lord Denning Master of the Rolls found that: a grant of planning permission runs with the land and may come into the hands of people who have never seen the application at all. It cannot be cut down by reference to the application The implications are that any controls or limitations attached to a planning permission need to be clearly and precisely stipulated within the four corners of that permission. 8. If something is not specifically controlled by the planning permission, including any conditions imposed upon it, then, by implication, it is permitted. Conditions cannot be implied into a planning permission, which is established in the case of I m Your Man v SSE (1999) 77P&CR 251. This case underlines the principle that members of the public are entitled to rely upon planning permissions and the rights they convey. 9. In R v Ashford Borough Council ex parte Shepway District Council [1999] 2PLCR 12, QBD (Ashford), when examining the question as to whether an outline planning permission could be interpreted by recourse to the underlying planning application, Keene J (as he then was) provided a useful summary of the principles to be employed. These were considered in the context of a full 1 Application ref: 09/11853/FUL dated 21 January 2010 (the 2010 permission). 2

3 planning permission in the High Court (see Barnett v SSCLG [2008] EWHC 1601 (Admin)) and subsequently in the Court of Appeal (Barnett) If it is plain on the face of a planning permission that it is a full permission for the construction, erection or alteration of a building, the public will know that, in addition to the plan which identifies the site, there will be plans and drawings that will describe the approved building works. This is precisely because the permission is not, on its face, an outline planning permission. In such a case those plans and drawings describing the building works were part of the description of what has been permitted. On its face, a grant of full planning permission for building operations is incomplete without the approved plans. In the absence of any indication to the contrary, those plans and drawings will be the plans listed in the application for permission unless stated to the contrary in the decision notice. Absent any such statement, the reasonable inference is that a grant of full planning permission approves the application drawings. 11. The appellant relied on the decision of the High Court in Basildon 3. In that case there was a planning permission for the improvement and extension of an existing building 4. No conditions were imposed to retain any part of the original structure. While the work was in progress the bare frame was blown down in a storm and subsequently a replacement was built. However, the planning permission involved operational development that fundamentally altered the original building. The part that was shown on the approved plan as retained would not have been visible. In the case before me, the pre existing building contained visible features that contributed to the architectural style of the original Dutch barn and were supposed to be incorporated into the new refurbished dwelling. Applying the Case Law outlined above, I will next consider the effect of the 2010 permission. The effect of the 2010 permission 12. First, it should be noted here that in construing the effect of a planning permission, the general principle is that the intention of either the developer or the Council is immaterial. It is the content of the documents that were placed on the planning register that is relevant unless there is ambiguity. 13. The appellant submitted that the 2010 permission should not be construed as if it were a statute or statutory instrument. The claim is that specific words used in the permission should not be construed in a disembodied way on their own, but should be looked at in association with the approved plans upon which the permission was granted. It was also submitted that particular weight should be given to the absence of a condition requiring retention of any part of the pre existing building. However, in my view, the absence of such a condition is not determinative that the permission allows total demolition and rebuilding. 14. In examining the 2010 permission document, it is apparent that it does not incorporate the planning application or any other document by specific reference. The approved drawings are referred to in condition number 2 as no. 5047/203 revision B and 5047/204. Therefore, the 2010 planning permission 2 See Barnett v Secretary of State for Communities and Local Government [2009] EWCA Civ See the case of Basildon District Council v. Secretary of State for the Environment & Asplin (CO/1391/84) (Basildon), which was unreported but full transcript and details were submitted in the documents. 4 Quote taken from page 2 paragraph E of the Basildon transcript which was attached to the grounds of appeal. 3

4 together with the approved drawings are sufficient for the purposes of determining its effect. 15. There is no specific definition of the words to convert or extend in the context of development control. It is reasonable to interpret the meaning of these words by looking at The Oxford English Dictionary. It defines the verb to convert as to change the form, character, or function of something adapt a building for a new purpose. The word change is to make or become different, or is a description of a process through which something becomes different. The word extend is defined as make something larger in area. 16. The description of the development does suggest that the proposal relates to a change in the use of the pre existing building, which involves operational development to achieve that purpose. Although there is no condition imposed on the permission to retain any part of the pre existing building, I consider the use of the words to convert and extend implies its retention. 17. I have already said there is no condition requiring the retention of any part of the pre existing structure, but there are other conditions and reasons. In addition to the standard commencement condition and the stipulation of the approved plans, condition no. 3 requires details of the materials to be used in the construction of the external surfaces of the building. This is because its external appearance should be appropriate to its rural surroundings. Condition 4 removes permitted development rights set out in Classes A to H of the GPDO 5. The reason given refers to the need to control further development having regard to the possible effects of the proposal and cites Policy ENV2 6. Condition no. 5 requires the first floor window on the east elevation to be fixed shut with obscure glazing to prevent overlooking of a nearby residential unit. Condition no. 6 requires details of any other sundry items such as rainwater goods to be first approved to ensure that the appearance of the barn conversion is maintained. Policies ENV2 and ENV24 are stated. 18. In chief and cross examination, the appellant expressed surprise on the wording and limited amount of conditions imposed upon the 2010 permission. Given the scale of the adaptations, there is nothing unusual in requiring building materials to be submitted for prior approval. In my opinion, the conditions and reasons do not support an argument that the 2010 permission facilitated the total demolition of the pre existing building and its subsequent rebuilding. 19. The appellant s submission was that the notes at the end of the 2010 permission are not included in its operative part, but they are contained within the four corners of the document and are informative of the overall scheme. The relevant local planning policies are cited in this section and the information gives reasons as to why the development was granted planning permission. It states that the proposed development is considered to accord with the majority of the provisions of policy HO10 of the Chester District Local Plan. Where the proposal does not accord it is considered that the retention of the character of this structure would outweigh the impact of the major reconstruction works required as part of this development. Policy HO10 relates to the re use of rural buildings. 5 See Article 3, Schedule 2, Part 1 of the Town and Country Planning (General Permitted Development) Order 1995 as amended (GPDO). 6 Policy ENV2 of the Chester District Local Plan

5 20. Taking all of the above points together, I consider that there is nothing within the document s four corners to support the forcefully put submission that the 2010 permission allows the total demolition and subsequent rebuilding of the pre existing building. Due to the wording used in the document, it is probable that any member of the public would arrive at the same conclusion. Nonetheless, the planning permission should be looked at in association with the approved plans which I will do next. 21. At the Inquiry, it was agreed that drawing no. 5047/203 revision B is the most important approved plan as that shows scaled elevations and floor plans. The box giving details of the scheme describe it as the redevelopment of Dutch Barn and the description is proposed ground and first floor plan and external elevations. There is no disclaimer on the plan suggesting that it is only for illustrative purposes. The ground floor plan shows a broken line with the following notation: Outline of existing building footprint. One bay removed and new structure inserted into the existing envelope without visible trace. The outline of this bay is reflected in the first floor plan. There is no other similar illustration. On the south elevation, there is a note saying: Existing steel structure exposed externally. New full height glazing to run behind line of columns and frame the existing structure. On the north elevation the note says existing & reclaimed brickwork to ground floor and the arrow points to one section. 22. I find the approved drawing particularly instructive of the nature, type and scale of the adaptations and alterations required to achieve the conversion of the pre existing building. The thickness of the lines depicting all of the ground floor elevations is mainly consistent. In comparison, the new single story extension to the north elevation is shown in a much darker format with thicker vertical lines. The design and appearance of the ground floor is reinforced in the west elevation where the new extension is shown in a darker form. When these details are compared with the sketch view of the south side and the entrance, it is apparent that, in its complete form, the character of the Dutchstyle barn, as evidenced in those parts of the building which would be retained, would have been incorporated into the conversion scheme. 23. The appellant argued that the approved plan was vague, and in crossexamination, suggested that it was open to interpretation. It was contended that it showed the removal of around 85% of the pre existing building, but there is no specific notation on the drawing to support that assertion. The format, type and style of the drawing distinguish what elements were to remain within two and five bays to the north and south elevations. On the other hand, the note pointing out the use of existing and reclaimed brickwork suggests an element of rebuilding. However, the notation does not support the assertion that the pre existing building was to be totally demolished and rebuilt utilising existing and reclaimed bricks. It is clear from the drawing that elements of the original building would remain, consistent with the description of the development. 24. Even if the conversion scheme was to be achieved via alterations and rebuild using reclaimed bricks, the remaining element (15% as agreed by the parties) contained all of the necessary and most important characteristics and architectural features of the Dutch barn that were supposed to visibly remain in a refurbished and improved form. Contrary to the appellant s submissions, I take the view that this case can be distinguished from Basildon. This is 5

6 because of the description of the development and those elements of the original building which would remain having the important characteristics of the Dutch barn. 25. Therefore, read alongside the approved plans the 2010 permission is unambiguous and clear on its face; the total removal of the pre existing building resulted in a significant and material departure from what was lawfully permitted. Effectively, planning permission was granted to convert and extend the pre existing building to form a dwelling and the plans show the nature, type and scale of the building operations involved in that conversion scheme. Irrespective of the fact that no planning condition was imposed upon the 2010 permission requiring the retention of any part of the pre existing building, there is no justification to support the claim that it granted planning permission for its total demolition and subsequent rebuilding. Other matters 26. I have reviewed and evaluated the facts of this appeal against the Inspectorate s decisions in South Hams and Woodspring 7. On the particular circumstances of this case, nothing in those decisions alters my findings above. In any event, each decision is made on its own individual merits and in my view the particular circumstances of the appeal before me differs from those in the two previous decisions. Accordingly, I attach little weight to the decisions. 27. The Council s evidence included reference to development commencing without compliance with condition no. 3. An application to discharge conditions was submitted but not formally determined. At the Inquiry, the Council conceded that the reclaimed bricks used on the rebuilding project are appropriate, and that other materials could be submitted for its approval. There is no need to evaluate the submissions made on behalf of the appellant on this specific point. Conclusion on ground (c) 28. As a matter of fact and degree and on the basis of the evidence, I am drawn to the conclusion that the 2010 permission does not grant planning permission for building operations involving the total demolition and subsequent rebuilding of the pre existing barn. For all of the above reasons, I conclude that the development requires express planning permission and so the matters in the corrected alleged breach constitute a breach of planning control. 29. The appeal on ground (c) therefore fails. The appeal on ground (g) 30. Given the nature of the work required to comply with the terms of the notice, there was broad agreement between the appeal parties that six months would be a reasonable period for compliance. I concur with that view and will vary the notice accordingly. The appeal on ground (g) succeeds to this limited extent only. 7 The South Hams decision (appeal ref: T/APP/C/92/K1128/620967/P6), dated 6 April 1993, was concerned with a development of three holiday lets, which had been achieved not by conversion as originally envisaged, but by rebuilding the former barn. The Woodspring case (appeal ref: T/APP/C/90/V0130/28 29/P6), dated 14 October 1991, related to a case in which planning permission had been granted on 11 July 1989 for renovation of existing farm buildings and conversion to a two bedroomed bungalow, barns at Oatlands, Wrington Hill, Wrington. 6

7 Overall conclusions 31. For all of the reasons given above and having considered all other matters, I conclude that the appeal on ground (c) fails. I further conclude that a reasonable period for compliance would be six months, and I am varying the notice accordingly, prior to upholding it. The appeal under ground (g) succeeds to that extent. Decision Appeal Ref: APP/A0665/C/12/ It is directed that the enforcement notice is corrected by the deletion in paragraphs 3, 4 and 5 of the words unauthorised development and the substitution therefor of the words unauthorised building. 33. The appeal is allowed on ground (g), and it is directed that the enforcement notice is varied by the deletion in paragraph 6 of the words three months and the substitution therefor of the word six months as the period for compliance. 34. Subject to the correction and variation, the enforcement notice is upheld and the appeal is dismissed. Ahsan U Ghafoor INSPECTOR 7

8 APPEARANCES FOR THE APPELLANT: Martin Goodall He called Robert Foden Messers Keystone Law On behalf of Windward Estates (North West) Limited (the appellant company) FOR THE LOCAL PLANNING AUTHORITY: David Noble He called Nial Casselden Principal Planning Enforcement Officer, Cheshire West and Chester Council DOCUMENTS 1 Letter of notification and those notified 2 Signed copy of Statement of Common Ground 3 Layout of existing barn 8