Casebook: Development Control Casebook Forum

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An application for an artist's studio in a conservation area was eventually approved by an inspector who imposed a condition requiring the building to "be used as an artist's studio and for no other purpose". The owners have since used it for occasional residential purposes, including letting the property to friends. Following the applicant's challenge against the commencement of enforcement proceedings, the planning authority now says that such occupation is ancillary to the main use of the property as an artist's studio and as such falls within the terms of the permission. Do you agree? PS.

It is difficult to comment on this without the full facts. However, the effect of the condition seems clear. Its purpose is to restrict the use of the building to an artist's studio, although whether that term includes any residential use is perhaps arguable. In my view, the authority's stance would only be correct were there no condition to specifically control this matter. In that event, it would be right to maintain that occasional residential occupation is ancillary to the primary use of the building as an artist's studio and therefore insufficient to trigger a material change in use. A case from Hertfordshire in 1996 involving an artist's studio considered similar issues (DCS No: 51732099). PM.

A building permitted in 2001 on condition that it was used only for purposes incidental to the applicants' smallholding has been used for storing caravans. Retrospective permission was refused for the current use because it was not for the agricultural purposes specified in the original permission. However, when the building was approved, the agricultural use was no more than hobby farming and no functional test was required to demonstrate need. Has the planning authority unwittingly weakened its position by failing to realise that the site could not have been considered agricultural land at that time? DL.

Where a proposed agricultural building is subject to prior notification requirements or needs express permission, the planning authority should always consider whether it is "reasonably necessary for the purposes of agriculture" and seek information to justify this need. Failure to do so will often result in the type of situation you describe, producing an apparently unnecessary building with no genuine agricultural purpose. I agree that the authority's position has been undermined by the absence of a functional test and this should strengthen the case for its reuse for an alternative purpose. PM.

A nature conservation charity has been advised that changing agricultural land to a "nature reserve" is a change of use. But this term can encompass a range of different circumstances. At one end of the scale, it simply involves changes in general farming or forestry management practices to encourage wildlife through raising water levels in ditches, removing conifers to create heath and so forth. At the other is the establishment and management of specific areas for wildlife with visitor facilities such as surfaced paths, hides, cafes and shops. My instinct is that changes in the way that land is managed do not need permission, regardless of ownership. However, at what point would permission be required for a nature reserve alone, excluding associated visitor facilities? SA.

The National Parks and Access to the Countryside Act 1949 states that a "nature reserve" means land managed for the purpose of:

- Providing, under suitable conditions and control, special opportunities for the study of and research into matters relating to the fauna and flora of Great Britain and the physical conditions in which they live and for the study of geological and physiographical features of special interest in the area.

- Preserving flora, fauna or geological or physiographical features of special interest.

Planning guidance on nature conservation is given in PPG9. Where a nature reserve involves engineering or building operations, the need for permission should be clear cut. But decisions on whether a change of use from agriculture to a nature reserve, which is a sui generis use, is material will always be a matter of fact and degree. Relevant factors could include the physical extent of the land, whether it is to be taken completely out of food production and positively managed as a nature reserve, the nature of such management measures and the potential for attracting significant numbers of visitors. Mere changes to farming practices do not constitute development. PM.

A 1930s semi-detached dwelling has a detached garage built in 1950 within 5m and a more recent single-storey rear extension. The owner now wishes to build a dormer extension. The combined volume of the dormer and the existing extension would fall within the 70m3 allowance and the dormer would otherwise meet the criteria in class B, schedule 2, part 1 of the General Permitted Development Order 1995. I think the dormer is permitted development and that it is not necessary to add the volume of the garage, despite it being built after 1948 within 5m of the dwelling and being "brought nearer" to the house by the rear extension. Is my understanding correct? SM.

The line currently taken by inspectors in comparable cases is that where a garage has been built at the same time as the dwellinghouse, or at least before 1948, and is within 5m of the dwellinghouse it does not count as an "enlargement". It is therefore not necessary to deduct its cubic content from the allowances under class A, part 1, schedule 2 of the order. But it is generally held, by virtue of condition A.3(b), that where a dwellinghouse would be extended to within 5m of a more recent detached garage, the garage should be included within the calculation of the "resulting building" under class B even though the condition does not apply specifically to roof enlargements. In this case, express permission will be required if the volume of the dormers, the existing extension and the garage together exceed 70m3. PM.

- E-mail your queries, or your replies to earlier queries, to Alternatively, post them to Development Control Casebook Forum, Development Control Services Ltd, Suite 1, Fullers Court, 40 Lower Quay Street, Gloucester GL1 2LW or fax them to 01978 869355.

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