Requirements of other authorities/service undertakers Q & A DCP Section 4.15

This section considers how material to the making of a planning decision are the duties, policies or standards of all those administrative bodies that also have an input into land use or environmental matters, be they Government/local government departments, agencies or privatised service providers. The requirements of the Department for Transport/The Highways Agency and of local Highways Authorities are considered at (4.151), and those of the Environment Agency (in relation to water) and the water companies at (4.152). The role of environmental health bodies is discussed at (4.153) and those of building or fire regulation departments at (4.154). Law enforcement agencies, education authorities, licensing justices, railway undertakers and airport authorities are discussed at (4.155) to (4.157). The two main considerations in deciding whether the policies of other bodies are material are whether they are related to the development/use of land and whether they reasonably relate to the particular application. Although it is initially for the decision-maker to consider whether a policy of another body is material, it is ultimately a matter for the courts to decide.

Q & A    4.15/10

The new PPG3 makes no reference to space standards in new dwellings in the way the old one did. This made it quite clear that internal space standards were a matter for developers. A problem that is encountered in this area is when housing officers object to proposed conversions on the basis that the proposal would create an unfit dwellinghouse under the Housing Act 1985. There is a particular difficulty when it comes to barn conversions and their fenestration.

The planning system has always had some difficulty in seeking to dictate internal space or amenity standards in dwellings. The provision in PPG1 relating to a need not to seek to achieve objectives achievable under other legislation, is against such controls as material considerations. However, although PPG3 now advises that inflexible planning standards should be avoided; many local plans contain specific internal space and amenity rules. Consequently inspectors are obliged to give them due weight at appeal. However, it is relatively rare for a proposal to be so deficient as to transgress the Housing Acts or other relevant legislation. If it did it is for the decision maker to consider whether a public interest matter related to land use and the general environment is raised, having regard to the effectiveness of other available administrative controls.

My department is dealing with an application for a side extension to a home for the elderly. One of the consequences would be that a joint access with the adjoining residential property would be narrowed. This would prevent a vehicle using the garage at the rear of the next door house from turning around so as to be able to enter and leave the site in forward gear. Is this a material consideration?

It is very much a material consideration if it can be shown that a proposed development would create conditions whereby there would be reversing into a busy or congested road which would create a traffic hazard. In this particular case the fact that the adjoining property is not part of the development site does not prevent the planning authority from considering any planning consequences on the occupier of that house, including the safe use of its access.

A planning committee is strongly opposed to an application for a corporate take-away use on the basis that a litter problem would be created, and I need to advise it as to whether this is a material consideration, particularly as this is the only available objection. What is the correct position?

The courts have held that the dropping of litter may be a material consideration in determining a planning application, even though there is other legislation available to control the problem City of Aberdeen v Secretary of State for Scotland and Scotstown Holdings Ltd [1991]. At appeal litter is hardly ever the only objection considered in relation to take-away proposals and in practice inspectors will routinely take the question on board in their overall reasoning. It is often concluded on the facts of the case that there would be no significant litter problem as a result of the proposed use, or that any adverse amenity effect may be mitigated by a condition requiring the provision of litter bins. Sometimes an agreement relating to regular external litter collection by an appellant company may be seen as a solution.

I rather doubt that a perceived problem relating to litter could be a sustainable reason for refusal on its own and this was the advice given in Development Control Policy Note No.11, although this has now been withdrawn.  If a refusal solely based on amenity harm from litter were persisted with an award of costs against your authority would be a strong possibility if the matter went to appeal.

A brownfield site is being considered for redevelopment. The previous use has not been abandoned, but the site has not been used for some time. A "traffic generation" can be assessed for the dormant use, by either historic traffic counts or by the application of standard trip generation figures for sites of this use. The residents living in the vicinity claim that the nearby junctions are nearly at capacity. What are the case precedents for offsetting the traffic generation of the old use against the new, and if so can be should it be calculated at actual peak use or typical use?

The usual approach in this situation is to consider whether it is reasonably likely that if planning permission were refused for the new development, the old use and its attendant traffic generation could be resumed without further planning permission. If this is the case then the "fall-back" situation is a material consideration and may be used to argue that only any additional traffic generated above previous levels should count towards any assessment of the highway impact of a proposed redevelopment. The reality is that there are few cases where such a situation occurs and therefore detailed comparative consideration of before and after traffic characteristics rarely arises. However, reference may be made to the judgment in Unicoin Homes plc v Secretary of State for the Environment, Transport and the Regions [2000] where this issue was raised. An appeal case of interest from Congleton in August 2000 saw TRICS database figures used to demonstrate that traffic generation from a former filling station and repair garage was likely to have been greater than a proposed 9 house redevelopment. Here an inspector observed that while estimates of this kind may not be realized in practice, and had to be treated with a degree of caution, he noted that the local authority accepted that the comparisons drawn were reasonable.

A local authority has refused planning permission because the formation of an additional flat in an already converted dwellinghouse has poor stacking and would cause noise problems to residents of the flats below. However, Building Regulations approval, including full soundproofing details PPG24 states that the government considers that the Building Regulations are the most appropriate means of control for sound insulation in conversions and that "…LPAs should not, therefore, use planning conditions to control sound insulation in such cases". However, it is my experience that local authorities continue to concern themselves about sound insulation of part floors, and indeed so do inspectors. Are you aware of a recent appeal decision where an inspector has ruled on this matter?

General advice in PPG1 Annex C states that "Planning legislation should not normally be used to secure objectives achievable under other legislation." The normal stance in decision making at appeal has been to follow this guidance insofar as alternative legislation may reasonably be relied on to resolve what would otherwise be a material planning objection. In terms of internal soundproofing in conversion schemes there is no doubt that this may be a material consideration as ruled in Newham London Borough v Secretary of State for the Environment and East London Housing Association [1986], but this judgment predates PPG24. Since then, as you state, conditions requiring the submission of a soundproofing scheme have been imposed by inspectors at appeal. Unfortunately I cannot lay my finger on an example where use of such a condition has been rejected in PPG24 terms. Can any reader help?

Response

The authority that I work for insists on sound insulation in these circumstances. Its justification is that the sound insulation required under the Building Regulations deals with airborne noise but not noise transmitted through the building, so it is still desirable to insist on stacking. As far as I am aware the policy has not been challenged on appeal.

My authority has recently been advised by the Environment Agency to refuse planning permission for a two storey extension encroaching closer than 5 metres to a watercourse. The Agency wishes to retain access to the watercourse to carry out its functions and protect the river environment.  The proposed extension replaces existing hard standing and would be permitted development if single storey.  There are no other planning objections and my question is whether it is a legitimate reason to refuse planning permission based on the Agency’s recommendation?  Under the terms of the Water Resources Act 1991 and the Land Drainage Byelaws 1981 the prior written consent of the Agency is required to undertake the development. Should not the issue of access be dealt with as a civil matter between that body and the land owner?

There seems to be no planning reason why planning permission should be refused for this development unless contrary to a provision in a local plan that the access or amenity of watercourses should be safeguarded. As there is no power of direction and other effective legislation secures that the requirements of the Environment Agency are met, I can see no compelling reason why the application should be refused planning permission on this one ground. Have any readers had experience of this situation?

My council has recently received a glut of large-scale housing developments on windfall sites. Each probably conforms to relevant policy guidelines, but as they do not relate to any development plan allocation or development brief, there has been no plan-led assessment of the cumulative impact of traffic. The highways engineers advise that if a number of the developments proceed, the highway network will become overloaded. Should the applications be considered on a first-come, first-served basis, or in order of receipt of sufficient information to demonstrate their individual acceptability? Or should the Council approve those that achieve the greatest environmental or regeneration benefits?

While the planning system usually works on a first-come, first-served basis, it seems to me that there would be merit in prioritising these sites according to their size and impact on the highway network, but within the context of an assessment of their suitability and potential against the criteria set out at paragraph 31 of PPG3. Readers’ views and experiences are invited on this interesting dilemma.

We recently submitted an outline planning application for residential development. The red line was drawn around the application site and a new vehicular access, and the appropriate Notices were served on the landowners. However the planning authority has said that proposed junction improvements to the existing highway must also be included within the site. I have always understood that these works could be dealt with by a Section 278 Agreement under the Highways Act 1980. What are your views?

Although I have come across this before, I am not entirely clear why a planning authority should insist on such a requirement particularly since, as you say, Sec 278 of the Highways Act enables an agreement to be made for the carrying out of works within the public highway. I assume that the authority considers that by doing this it would retain greater control over the development, including enabling certain conditions precedent to be imposed on the permission, although the effect of these can normally be achieved through a Grampian style condition. Perhaps a reader will clarify the possible reasons for the planning authority’s stance.

Response

With regard to the query concerning a local authority that has insisted on highway improvement works being included within the application site this is probably because some of the land required to improve the junction lies outside the public highway and the application site. As such, it would require specific planning permission. Also, its inclusion would enable the imposition of a condition requiring the implementation of the junction improvement works prior to the occupation of the dwellings.

A planning condition relating to a new dwelling required a visibility splay over my client’s land, outside the application site, but was not worded in the Grampian style. Because of this, the absence of any related legal agreement and the need for my client’s wall to be lowered, the splay was not provided. My client thinks that his compensation rights for the affected land have been denied. He has served a purchase notice on the authority but this has been rejected as invalid, because it relates to land beyond the application site. Is this right and what recourse is open to my client?

The purchase notice system provides a remedy for owners of land left without any reasonably beneficial use following a planning decision, including a grant of permission subject to conditions. Sec.137 of the 1990 Act details the circumstances in which a notice may be served requiring a local authority to purchase the land, and policy advice is given in Circular 13/83. The latter explains that the notice must relate to the same area of land as that subject of the planning decision. It therefore follows that your client’s notice was invalid. Where an authority refuses to accept a notice, it must be referred to the SOS for consideration although this procedure may only apply to valid notices.

However, I fail to understand why your client believes that the land in question has been deprived of any reasonably beneficial use, especially as the condition appears to be ultra vires and incapable of enforcement, as it relates to land outside the application site and beyond the applicant’s control. Had it been a Grampian condition, then clearly the applicant could have been enforced against, in which case the value of your client’s land would have increased. Reference should also be made to paragraphs 37 – 39 of Circular 11/95 on the reasonableness of such conditions.

Response

In reply to the query concerning the failure of a local authority to impose a Grampian condition requiring the provision of a visibility splay before occupation of a proposed house, apart from being sheer incompetence, this is arguably maladministration, and a complaint should be made to the Local Government Ombudsman.

The so-called Grampian-type condition requiring the provision of a visibility splay on land outside the applicant's control before occupation of the proposed house would not have helped much and arguably might have created a worse tangle than the one that exists. A true Grampian-style condition would, of course, prevent a start on development until the splay has been provided. In this case, the condition would have allowed the house to be built but would not have secured provision of the splay, leaving vacant property served by an unsafe access.

Outline planning permission is sought for a dwelling. The Roads Authority is seeking visibility splays which would cut across land outside the site but on land owned by the applicant. However, the planning authority is concerned that a condition requiring these would be unenforceable if the ultimate developer is not the applicant or a person with control over the land for the splay, as any such enforcement action would be punitive. What are your views?

Similar queries have been raised in recent issues and I understand the authority’s concern. It seems to me that there are two ways round this problem. My preferred route would be to consider whether the application site could be enlarged to include the splay without materially affecting the character of the proposed development. The alternative would be for the planning authority to word the condition negatively, in the Grampian-style, thus preventing development until the splay has been provided.

A local shopkeeper regularly parks one or two cars on the public highway near his premises, which are offered for sale. Apart from reducing the limited on-street parking available for visitors to the area, is this a breach of planning control?

The use of a public highway for the sale of cars is likely to be an offence under the Highways Act for which the perpetrator may be prosecuted. Although a material change of use will have occurred if the same part of the public highway is used consistently for car sales, taking effective planning enforcement action will be difficult if the use is a transitory one. Cars might be parked and sold from differing parts of the highway at varying times, making it impossible to formulate a firm allegation of a breach in planning control. In any event, it might not be considered appropriate to use planning powers in these circumstances, as any enforcement notice would need to be served on the relevant highway authority. This could be the same body as the planning authority.

Outline permission was granted for a development together with details of the means of access, which was not a matter reserved for subsequent approval. The approved drawings show bollards blocking an exit route from the proposed development. However, there is no condition on the permission requiring this to be stopped-up. In such circumstances, can the planning authority require that the exit be closed to vehicular traffic and does it make any difference whether the bollards were shown on or inside the site boundary?

The failure to apply a condition to ensure that the exit is closed before the development commences or is occupied is unfortunate. However if, having regard to the so-called "evidential matrix" of the application, it is clear that the exit route was to be permanently closed to traffic, then as specific approval for this was sought at outline stage and detailed on the approved plans, this need not be fatal. I would expect the same access arrangements to be shown on the drawings with the necessary application for the approval of the siting of the proposed development. So long as the bollards were shown on land within the application site, they may be achievable. But the absence of the condition weakens the authority’s ability to take enforcement action and it cannot impose a condition on the approval of the remaining reserved matters to deal with this issue.

In accordance with paragraph 19 of PPS7, which supports the replacement of existing buildings in the countryside for economic development purposes, we propose an office building in the Green Belt to replace a former agricultural building that has been converted to B1 use. But the planning authority argues that under PPG2 the new building would be ‘inappropriate development’ and that this guidance outweighs PPS7. It rejects our claim that the new advice in PPS7 amounts to ‘very special circumstances’ sufficient to override the presumption against inappropriate development, since it is the most up-to-date government policy on sustainable development in the countryside and is wholly consistent with PPS1, whereas PPG2 is not.  Surely PPS7 should attract more weight?

While statements of government policy are material planning considerations, it has been established that the weight they attract is always a matter for the decision-maker. The introduction to PPS7 makes clear that its policies "complement, but do not replace or overrule, other national planning policies and should be read in conjunction with other relevant statements of national planning policy". I do not think that the guidance given generally in PPS7 to rural areas can outweigh the more restrictive, specific guidance given in PPG2 to green belts. This is reinforced by paragraph 26 of PPS7 which states that "the policies in PPG2 continue to apply in green belts". It neither adds that the latest guidance could form part of any "very special circumstances" nor rules this out. PPG2 is due to be reviewed, although this is not a current priority. In the meantime, its advice should continue to be taken into account.

The owner of a hot food takeaway is seeking permission to vary a condition to extend its opening hours from 11pm until 1am. The planning authority is minded to refuse permission because of harm to public amenity. However, I argue that the licensing reforms adequately deal with this. If an appeal were lodged, might it be concluded that the authority is attempting to duplicate other controls?

You have touched on a difficult area of planning control. Following the Licensing Act 2003, any hot food takeaway selling food to the public after 11pm is now required to have a premises licence. Although framed in the context of pubs and clubs, the Government’s 2002 consultation paper on possible changes to the Use Classes Order and temporary use provisions reiterated the general principle that the planning system should not duplicate controls exercised by other mechanisms, such as the licensing regime. However, this advice was not carried forward into Circular 03/2005, which explains the recently amended Order. Moreover, the courts have held that councils and inspectors are entitled to use planning powers to limit opening hours. While these may be more stringent than those authorised under the licensing code, such restrictions must serve a clear planning purpose in protecting local amenities. Inspectors have been inconsistent in their approach to this issue, with many evidently reluctant to impose additional controls beyond those available to licensing authorities.

I have two cases where disabled access is an issue. In the first, premises on two levels was given permission for change of use to offices five years ago, but the permission has run out. The authority who are happy in principle with a new permission, but now require a disabled lift.  This will take significant floor space and be costly.  The project is rendered unviable.  In the second, a different authority is happy for a basement to be converted to offices.  However they require a ramp which will be difficult to achieve.  Building control has said in writing that they will accept steps as it is an existing building.  I would welcome your comments on these cases.  In the second, who takes precedence, the planners or building control? TB.

In both cases, your chances if you get to an appeal will largely depend on whether the authorities have clear adopted policies supporting their stances. The Department of Communities and Local Government’s document "Planning and Access for Disabled People: a Good Practice Guide advises, "If a development proposal does not provide for inclusive access, and there are inclusive access policies in the development plan and in supplementary planning guidance, bearing in mind other policy considerations, consider refusing planning permission on the grounds that the scheme does not comply with the development plan". Whilst in both scenarios you refer to the access issue appears to relate to internal layout matters and planning has a restricted role in dealing with internal layouts, nevertheless it seems likely that, provided the authorities’ cases were reasonable, they could well be supported at appeal.

A case which is a close parallel to the first scenario is DCS reference no 100-056-789 where an inspector supported an Essex authority’s supplementary planning document which required lifts to be provided for flat developments above two storeys.

In the second scenario, the building control section’s view does lend some support to your position, but the guidance referred to above does indicate that Part M of the Building Regulations deals only with the minimum standard of design and cannot deliver a fully inclusive environment which is what the guidance aims to achieve. I should perhaps add that the ideal disabled access solution is to have both a ramp and stairs as some disabled people find ramps easier to use and some stairs.

Obviously if there are factors which support your clients’ proposals, e.g. there are community benefits in the schemes going ahead and excessive accessibility requirements might jeopardise them, you should put these forward to the planning authority and, of course, in any appeal. Nevertheless, if the planning authorities have appropriate policies supporting their stances you may find yourself in a weak position. JH.


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