Q & A 9.6/10
I am trying to establish whether the rebuilding of a demolished dwelling in the countryside where the foundations are visible and the demolition occurred during the last 30 years should be considered appropriate. The proposed dwelling would be of similar design, scale and materials to the previous house and will occupy the same footprint. My client seeks to live in the building to provide security for his adjacent scrap yard business.
It has been established in the courts that the demolition of a building upon which the use of land relies, removes any use rights pertaining. Therefore there is no legal basis to argue for a dwelling on this land, and any permission must rely on the planning merits of the case. As you say that the location is in open countryside the odds seem stacked against you, and replacement policies would not even apply. It is possible for a rural dwelling to be justified by the needs of an adjacent enterprise but it is rare for this to be accepted.
I am currently dealing with a proposed "one for one" replacement dwelling in the countryside. The existing dwelling consists of a section of a former mushroom shed the subject of a lawful use certificate. This is now considered to be unsuitable accommodation and in need of replacement, although there are no obvious changes or deterioration in the building since the certificate was obtained. A detached two storey house is proposed in place of the shed. Is it appropriate to allow such a building to be replaced in this way. Your advice is welcomed.
One of the inputs into a decision on this matter will be the terms of any rural dwelling replacement policies contained in the local plan, although I suspect that these will not be strictly applicable to this unusual circumstance. I would have thought that there could be tangible planning benefits arising from this proposal in that a building which may well be quite large and utilitarian in appearance will be removed from the rural scene, to be replaced by a new structure of lesser bulk. The visual impact of the new building could be controlled by conditions relating to landscaping, removal of permitted development rights and a limitation of domestic paraphernalia, while no such controls are possible in relation to the present use. However, before going down this road your authority needs to be reasonably sure that if permission were refused the residential use in this shed would be likely to continue.
If a house in the green belt has a large curtilage containing a substantial outbuilding of no special design merit, should permission be granted for its replacement by a dwelling? Approaches to my council are met with a firm "no" but I find myself wondering what such a negative approach is actually achieving. If the land in question is already garden and the new house would be no larger than the existing outbuilding, there is no change in character and no loss of openness. Also the building could be converted to a "granny-annex" or other family living accommodation without planning permission. Does this not amount to very special circumstances"?
Green belt guidance PPG2 does not specifically address the situation where it is proposed to replace an outbuilding with a new house, although the replacement of existing houses is considered "appropriate" subject to restraint on the amount of size increase. PPG2 also provides that the conversion of this building to a dwelling could be appropriate subject to the four tests set out at para. 3.8. However, because the replacement of an outbuilding would create a new dwelling which PPG2 advises is "inappropriate", and there is no specific exception made, decision makers have tended to come down against this form of development for pure policy reasons. Taking a more pragmatic view it is possible to argue that in the circumstances you describe there would be no harm to green belt openness, and it is a material consideration that the existing outbuilding could be converted to ancillary residential use without permission. Indeed a very substantial new "incidental" building could be built within such a residential curtilage using Class 1 Part E permitted development rights. However, the fact remains that an additional house would be created in a green belt area creating increased activity and traffic movements and raising problems of sustainability, and in order for these to be outweighed positive benefit would need to be demonstrated, not just lack of visual harm.
My client wishes to use up his permitted development rights to erect garden buildings under part 1 Class E, and then apply for permission for a replacement dwelling in a green belt area. The logic behind this lies in the fact that local authorities normally impose a condition on replacement dwellings removing permitted development rights altogether. Can you see any flaws in this approach?
A condition requiring demolition of the existing house is standard when a replacement rural dwelling is being permitted, and it is possible that this could be so worded as to include all existing ancillary buildings. If such an all embracing condition were imposed a local authority would have to justify it as reasonable and relevant to the permission for the replacement dwelling, and this may not be easy. However, assuming that things progressed conventionally and the original dwelling were replaced and removed, the outbuildings left on site would remain within the same planning unit and their legal status as ancillary residential structures would transfer from the old dwelling to the new.
Planning permission was granted for the demolition of an old house in poor condition and the erection of a replacement dwelling. A third party was keen to see the existing house retained, but the council considered it of little merit. Some four months after the issue of the decision notice and some days before the commencement of works on site the owners were informed that the building had been listed. It seems that there is no appeal against such a listing and the house cannot now be demolished without listed building consent. The owners are thinking of applying for de-listing or alternatively applying for listed building consent to demolish and appeal against any refusal on the basis that the house is incapable of economic restoration. My concern is that the planning permission has been invalidated without compensation and my clients have incurred considerable professional fees in the four months between the date permission was granted and the date of the listing. What is your advice?
As you say, there is no statutory right of appeal against listing, but the Secretary of State will consider informal requests for de-listing on the basis that a mistake has been made or the building concerned is no longer worthy. However, I understand that such a request will not be entertained if the building in question is subject to an application or appeal.
You are also right to assume that the act of listing carries no right of compensation even if consequential losses can be demonstrated, and I see no way round the fact that the building cannot now be demolished without breach of listed building control. It is difficult to see that a direct application to the Secretary of State would have much chance of success at this stage, and the forum of an appeal if the local authority refuse to allow demolition would seem to be the best way of getting the issues fully aired.
Regarding the person who obtained planning permission for a replacement dwelling only to find the building was then listed and the cost of preparing the scheme wasted had they thought to apply for a Certificate of Immunity from Listing at the outset of the scheme, this could have been prevented.
I wish to redevelop a dwelling on a sizeable plot between existing housing in the green belt, which was designated after the homes were built. The planning authority is seeking to limit the size of the replacement home even though this would not affect the statutory purposes for green belt designation. Are there any precedents for this and have there been any successful appeals against such "planning by policy" rather than sensible appraisal of the proposal's merit? Has there been a test on human rights legislation?
PPG2 advises that replacement dwellings are not inappropriate provided they are not materially larger than those they replace. It adds that development plans should make clear the approach planning authorities will take, including the circumstances, if any, under which replacement dwellings are acceptable. Typically, local planning policies will only tolerate an increase in size of up to 25 per cent of the original dwelling’s floor space. However, the pragmatic response to most rural replacement house proposals is to note appropriate plan policy and to assess a proposed replacement for any increased impact on the countryside, green belt openness or other interests. Sometimes larger dwellings may be found to be less harmful than the houses they replace. Various decisions where inspectors have allowed appeals despite replacement dwellings exceeding policy limits are outlined in 9.631. It is rare for arguments on human rights to succeed and I can find no relevant case.
A development plan requires applicants for replacement dwellings in the green belt to demonstrate that they will be no more obtrusive than those existing. Our planning authority is saying that our highly visible existing dwelling which is 2 metres from the highway and another house is less obtrusive than an alternative totally screened location within our five acre curtilage. Is there any guidance as to how this subjective judgement should properly be made. CH.
I think I can see where your planning authority is coming from. It is a fundamental reason for including land in green belts, as set out in government guidance PPG2, that such areas should be kept permanently open. This aim is expressed in broad policy terms, and thus will not be satisfied if new development is placed in an open location where none existed before, even though pragmatically it can be argued that it would not be visible from public vantage points. GH.
A planning appeal determined last January concerned a replacement for a house which was burnt down in 1939 (DCS Number 100-055-961). The site was in low density housing area in the Chilterns Area of Outstanding Natural Beauty. The remains of the original walls existed to a maximum height of 2.5m, although vegetation had grown up inside the structure. The inspector considered whether the site qualified as previously developed land (PDL) and reasoned that in line with PPS3 Appendix B it had blended back into the landscape over the course of time. He observed that from public vantage points the site had the appearance of an undeveloped, overgrown plot of land. I contend that the existence of walls up to 2.5m cannot have blended into the landscape in the words of PPS3. Lack of visibility from outside the site was due to an overgrown laurel hedge. What is your view on the apparent view of this inspector that a hedge around a site can result in the land not longer qualifying as PDL? JA.
Inspectors are given considerable leeway to interpret planning guidance and if this case were ever challenged in the courts I have the feeling that a judge would be reluctant to interfere with the decision. From a reading of the decision letter that you supplied I also note that the proposal did not comply with development plan replacement dwelling policies, and the inspector also identified harm to the character of an area of ‘large high quality houses’. Thus the decision would, doubtless, have been the same even if the PDL issue had not been raised. Having said that, and without having seen the site, I think that the inspector’s assessment on the PDL issue alone was a bit harsh. The wording in PPS3 suggests that to have blended into the landscape a site must be ‘reasonably considered as part of the natural surroundings’. This seems to me to suggest a balanced view has to be taken as to whether blending has taken place based on various viewpoints both within and without the site. . Therefore, I remain to be convinced that quite substantial remains of walls, albeit surrounded by a high ornamental type hedge, does not constitute PDL. It is interesting to muse as to what the inspector’s assessment would have been had the applicant ‘unblended’ the land by removing the hedge and other vegetation prior to the appeal, GH.