Housing in the open countryside Q & A DCP Section 9.2

This section deals with the control of housing developments of less than 10 units in areas agreed to fall within open countryside where rural restraint policies normally apply, but excludes infill housing in villages or small groups (including rural exception affordable housing) (9.1), agricultural/equestrian dwellings (9.3), dwellings required for the needs of tourism (9.5), replacement dwellings (9.6) and the removal of holiday occupancy conditions to create permanent dwellings (9.7).

Q & A    9.2/10

Has a proposal to build an underground or earth sheltered dwelling ever been allowed in a rural area because of the special sustainable characteristics of such a development?

I can only answer in respect of decisions made after appeal, and using the COMPASS database there do not appear to be any rural cases where below ground dwellings have been allowed. Of course, almost any dwelling in a rural area, underground or not, brings the objection in tail that it is not in a sustainable location due to reliance on the car for access.

A house has been built without planning permission next to a group of farm buildings serving a farm. It is reached by a farm track and has been lived in for four years, with the farm being run from the house. What is the correct approach to determining whether enforcement action should rely on the  four year rule or the ten year rule? I am faced with the proposition that the ten year rule is appropriate based on the argument that the planning unit is the whole farm and that because of the shared access and the use of the house in connection with the running of the farm, a mixed residential/agricultural use has occurred.

The four year rule is embodied in statute at section 171B of the Town and Country Planning Act 1990. This indicates that if there has been a breach of planning control consisting of building operations no enforcement action may be taken after four years. The section also states that the four year rule also applies to a change of use to a single dwellinghouse.  Thus there is direct statutory authority for the proposition that what has taken place is lawful by reason of the four year rule. I do not think that court led concepts, such as the use of the planning unit in determining whether a material change of use has occurred, override a clear statement of law in this respect. Use of part of  the farmhouse, say as a farm office or farm ablutions, would be ancillary to its primary use for residential purposes and in my opinion would not disqualify it from being a "single dwellinghouse" in section 171B terms. Neither would I have thought that joint use of its means of access has anything to do with preventing the farmhouse from being so considered.

My conclusion is that an attempt to apply the ten year rule to this circumstance is spurious, and I have failed to identify any court or appeal cases where this line has been argued.

Response

The court case Stanway v Secretary of State for the Environment, Transport and the Regions [2000] may be cited in support of the view that a mixed use could be found to have occurred in this situation.

The Stanway case referred to a circumstance where a residential use had been introduced into a stable building. An inspector had noted that the accommodation was very deficient in respect of light and ventilation. In addition the structure and specification of the building were more appropriate to a stable. He reasoned in accord with these findings that the development enforced against had not led to the creation of a single dwellinghouse, rather a mixed use for stables and residential use. Following challenge, the judgement given was that any decision as to whether accommodation was, or was not, a single dwellinghouse, is matter of judgement for the inspector in the circumstances of the case. However it was found that the inspector had not justified his view that a mixed use had occurred in the light of the later finding in his letter that the functional linkage between the residential use and the stabling was tenuous.

With respect, I do not see that this judgment takes anything away from my conclusion that provided the normal tests for a single dwellinghouse are met, such as are set out in Circular 10/97 paragraph 2.81, then the four year rule is applicable regardless of what other adjacent use the dwelling is associated with.

I was involved in the Stanway case and question the original view in the light of the remitted appeal decision dated 18 May 2001. The inspector stated that there was a close connection between the living accommodation and the stables and he was not persuaded that the two holdings were physically separate and distinct. Therefore he felt that a material change had taken place to a mixed use including a residential element. The inspector noted that the health and safety of the horses was the principal manifestation of a functional relationship between the respective uses.

I still maintain my original view. With reference to the facts of the remitted case which I have read, I feel that if the residential accommodation had been a little more self-contained so as to qualify as a single dwellinghouse as set out at section 171B of the Town and Country Planning Act 1990, it would not matter a jot what associated purpose the accommodation was intended to serve or support.

I am currently preparing for an appeal in which I act for the owner of a pig farm which he wishes to develop for residential purposes. The farm lies with a green belt area but is within 120 metres of a large housing area on the edge of a sizeable town. There have been many complaints over the years from the nearby residents regarding smell nuisance and I am seeking to argue as "very special circumstances" that the local authority has allowed housing close to this existing pig farm. Are there any cases where a pig farm has been redeveloped for housing in these circumstances?

The court case North v Secretary of State for the Environment [1995] centred on a very similar situation. Here a green belt pig farm was also in close proximity to houses and residential development was proposed. At appeal an inspector accepted that smell created a nuisance for neighbours, but did not think that the removal of that nuisance was a very special circumstance. He felt that the farmer could reasonably have taken into account the environmental effect of substantially increasing the number of pigs ten years previously, and this effect could not be argued subsequently as a very special circumstance. The court held that the fact that the applicant had expanded his enterprise near the housing did not diminish the desirability of removing the use entirely from the site, therefore eliminating the smell. The case was remitted to the Secretary of State on the basis that the inspector had not properly substantiated his conclusion. On reconsideration of the case it was allowed on the basis that there would be a great improvement in the living conditions of residents and the visual quality of the green belt itself.  It was also noted that the service of abatement notices would be unlikely to improve the odour nuisance. Subsequent to this ruling a notable call-in case decision in 1998 saw 30 dwellings allowed at a green belt pig farm near Newark where improvements to residential amenity were considered to be very special circumstances.

I am dealing with an application for a dwelling on a 7 acre rural smallholding site. Following a closing order and burning down of a timber dwelling full planning permission was granted for an unrestricted replacement in 1970. The present owner did not implement this, but a caravan was given a succession of temporary approvals culminating in a personal but permanent permission in 2000. In the intervening years two applications for a dwelling, and the conversion of a pig swill building to a dwelling were refused on grounds of lack of agricultural need. In 2003 an LDC was granted for the use of this pig swill building for residential purposes as it appeared that it had in fact been lived in for some 20 years, with the permitted caravan only used for domestic storage. The LDC was qualified to reflect the fact that occupation had been by an agricultural worker. Given that the residential use of the site has never been abandoned is the LPA justified in now refusing a dwelling on this site?

The destruction of the original house constituted abandonment of residential use and the 1970 planning permission has long expired, unless some material operations kept it alive. No doubt the planning policies whereby this replacement was allowed have changed and are likely to be very much more restrictive today. It also seems that agricultural justification for a new dwelling is unlikely to be shown in PPG7 terms.

However, although there may be no legal rights or policy enablements for a permanent new dwelling at this holding, your council is now faced with a situation whereby it has condoned a restricted form of residential use of the site by successively granting permission for a residential caravan, whatever it has actually been used for. It has also had to concede immunity from enforcement for use of the pig swill building as a dwelling. The LDC for the latter would in fact allow unrestricted occupation, as if the building were to be lived in by somebody not employed in agriculture, this would not constitute a material change of use.

Your council does not have an easy decision to make, given that one does not allow new dwellings in rural areas lightly. However, in the circumstances of the planning history I would think it expedient to give permission for the new house, particularly if it can be secured that the siting of the caravan and the conversion use cease. In my view if a house was refused there is a fair chance that an inspector would allow any appeal due to the special circumstances.

PPS7 has extended the justification for new dwellings in the countryside to include "rural-based enterprises" but gives no definition of this term. Would it include enterprises such as a school that happen to be based in the countryside, regardless of whether they actually require a rural location, or just those that have a rural basis and need to be located in the countryside, such as an equestrian centre? Does "rural-based" relate to the physical location of the business or does the enterprise itself or the good or service produced need some rural connection?

Regrettably, this term is not defined in PPS7 and no examples are given. This was a matter of concern for some respondents to the consultation draft of the policy statement. The general advice at paragraph 15 of Annex A says only that "the enterprise itself, including any development necessary for the operation of the enterprise, must be acceptable in planning terms and permitted in that rural location". Inspectors usually take the line that the enterprise must have an essential link to the use of the countryside. This has been held to include equestrian developments, wildlife sanctuaries, birds of prey centres and green burial grounds. Catteries, agricultural contractors, timber processing and fishing uses have all been unsuccessful. The most appropriate approach may be for planning authorities to set out guidance and criteria for assessing such applications in their local development documents.

What Government guidance should be applied to large country house proposals in Wales?

Such proposals should be considered against the advice in Planning Policy Wales and TAN6. These explain that new housing away from established settlements should be controlled and that isolated houses in the open countryside require special justification, for example, where they are essential to enable farm or forestry workers to live at or close to their place of work. There is no special provision for country houses such as that found at paragraph 11 of PPS7 in England. This advises that very occasionally an isolated new house may be justified by exceptional quality and design, which must be "truly outstanding and ground-breaking". I am only aware of one relevant appeal decision, from Anglesey in 2002 (DCS No: 46852550). This concerned an outline proposal to reinstate a former mansion on a large country estate in an area of outstanding natural beauty. The appellant argued that its reinstatement would continue the historic tradition of having a large manor house associated with running the estate. The inspector found no justification based on the estate's needs and insufficient detail to conclude that the dwelling's design would be so exceptional as to warrant overriding normal policies of restraint. In rejecting the proposal, the inspector also noted that the guidance on country houses then set out in PPG7 did not apply in Wales.

We have just had an application for a replacement dwelling in the green belt refused. The committee report recommended refusal as the new dwelling was substantially larger than the previous one. At the committee meeting, however, a second reason was introduced, quoting the local plan density policy and planning policy statement 3 (PPS3) and claiming the application did not make efficient use of land. My view is that PPS3 addresses housing developments of sufficient scale that density parameters may be applied and is not relevant to an isolated rural dwelling. Your view on this reason for refusal and its late introduction is welcome. GJ.

Article 22 of the General Development Procedure Order 1995 requires planning authorities to give their full reasons for refusal. Thus, if an authority realizes at the last minute that a further reason for refusal applies, officers should bring it to the attention of the committee. Having said this, like you I consider the second reason for refusal completely contradicts the first. JH.


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