Planning Appeals - Statement of Case Examples

[phykell]

Hi,

 

I was recently refused a lawful development certificate for an outbuilding and have been trying, with little success, to engage the LPA before resorting to the appeal process. On the assumption that the LPA will continue to delay, I've begun the process of writing a Statement of Case and I've realised quite quickly that the Planning Inspectorate web site doesn't really provide much, if any, practical, constructive guidance on the structure and content of this very crucial document. I understand every case is different so that may be one reason but it makes me wonder if there are any case studies around which include Statements of Case examples. After all, reference to, and the reuse of existing high-quality, proven examples, would surely result in a reduced workload for the Planning Inspectorate which benefits everyone. Can anyone suggest such a resource?

Incidentally, I've also approached a professional planning specialist to handle the appeal for me.

 

Thanks

[DevilDamo]

See if you can find examples of approved outbuildings via a Householder application and refer to the Officers Report for inspiration. 

[Temp]

I might be wrong but I thought an LDC had to be granted or refused on objective/factual grounds rather than subjective grounds. Eg It either meets Permitted Development rules or it doesn't. 

 

What reasons were given for refusal? 

 

 

[phykell]

7 minutes ago, Temp said:

I might be wrong but I thought an LDC had to be granted or refused on objective/factual grounds rather than subjective grounds. Eg It either meets Permitted Development rules or it doesn't. 

 

What reasons were given for refusal? 

 

 

Well, I'm not a professional so this is very much a layman's view with reference to the refusal documentation, but it can be summarised as their contention being that the development is not "incidental to the enjoyment of a dwellinghouse" (Class E). Whilst there's no obvious limit on the size of an outbuilding in terms of area (other than being less than 50% curtilage) there's no statutory definition of “incidental” in the GPDO. In my case, the LPA claims that they must refer to case law to provide guidance, quoting a couple of legal cases to make their argument, one of which was a private individual's requirement for a hangar for his plane (his appeal was approved)!

In a nutshell, I submitted plans for an outbuilding consisting of a three-bay garage and an indoor swimming pool, together with supporting shower, changing and plant room. The outbuilding was to replace an existing two-bay (dilapidated) garage and subsume a disused outdoor swimming pool. If you read the excerpt from the delegated report below, they say that both sections of the outbuilding (garage and pool room) aren't unreasonable but taken together, they are (somehow) and that's enough to claim that it isn't "genuinely subordinate and reasonably required for purposes incidental to the enjoyment of the dwellinghouse".

From the decision notice:

“The proposed outbuilding fails to demonstrate that as a matter of fact and degree, due to its size and intended uses that it would be genuinely subordinate and reasonably required for purposes incidental to the enjoyment of the dwellinghouse. As such it does not constitute 'Permitted Development' under Schedule 2, Part 1, Class E of the Town and Country (General Permitted Development) Order 1025 (as amended)”.

 

From the delegated report:

“…when broken down, none of the proposed uses of the building appear obviously unreasonable (even though in scale all are more than generous), the activities indicated in the application, in the main fall into categories that, individually, may be acceptable as incidental to the enjoyment of the dwelling house, however taken together they occupy an unreasonable amount of space. It has not been demonstrated that the outbuilding is genuinely subordinate and reasonably required for purposes incidental to the enjoyment of the dwellinghouse.”

[DevilDamo]

@phykell What’s wrong in submitting a Householder application? That’ll be a lot quicker than going through the Appeal process. 

[Alan Ambrose]

You’ll find examples i.e. actual cases (probably) on your LPA’s portal (there are on mine). Both appellant’s and LPA’s cases.

 

May take a while to find similar circumstances to yours as (at least my) LPAs search facilities aren’t the greatest.

 

Not sure why you’ll want to write one though if you’re using a planning consultant - as that’ll be their main skill.

[garrymartin]

How big is the "dwellinghouse" in comparison if they feel the outbuilding will not be "genuinely subordinate" as is required under PD rights?

[phykell]

11 minutes ago, DevilDamo said:

@phykell What’s wrong in submitting a Householder application? That’ll be a lot quicker than going through the Appeal process. 

I originally submitted one (just for a 50% larger garage) but as I'm in a conservation area, the LPA raised all sorts of objections including materials used, rejecting the 50% extra size, and many other items besides. The lawful development certificate for PD is *much* easier and I think I'll win an appeal.

[garrymartin]

If I'm reading it correctly, the issue is more one of dominance. So it's the "genuinely subordinate" element that is probably more of an issue rather than the "incidental enjoyment". After all, both garages and swimming pools are listed as examples in Class E so I think they'd struggle to argue the "incidental enjoyment" argument...

 

Can you create two buildings? A three-bay garage and a swimming pool block?

 

Combining them into one building might cause issues if in size it then becomes difficult to distinguish it from the main dwellinghouse.

[phykell]

7 minutes ago, garrymartin said:

How big is the "dwellinghouse" in comparison if they feel the outbuilding will not be "genuinely subordinate" as is required under PD rights?

That's an interesting question - it's a little smaller than the main dwelling house in terms of area, so that sounds huge with no other context. But of course, the outbuilding is single-storey and its total area will be less than the combined area of the original two-bay garage and the original pool including the decking around it. To be fair to the LPA, this wasn't highlighted in the original application for the LDC.  

[phykell]

3 minutes ago, garrymartin said:

If I'm reading it correctly, the issue is more one of dominance. So it's the "genuinely subordinate" element that is probably more of an issue rather than the "incidental enjoyment". After all, both garages and swimming pools are listed as examples in Class E so I think they'd struggle to argue the "incidental enjoyment" argument...

 

Can you create two buildings? A three-bay garage and a swimming pool block?

 

Combining them into one building might cause issues if in size it then becomes difficult to distinguish it from the main dwellinghouse.

Perhaps "dominance" might be an issue but two buildings means a more expensive development and less energy efficiency plus I want to have a PV array extending across the entire roof which will satisfy much of the pool's requirements together with the main dwelling. It's only the area (206 sqm) which is almost as large as the main dwelling but the latter is two storeys and is very distinctive with white lime-washed render on 1/2 of it sandstone for 1/4 and old farmhouse replica brick for a side extension (looks nicer than it sounds). The outbuilding is going to look like a garage with a large glazed area and won't even be visible from any public land/road.

[phykell]

48 minutes ago, Alan Ambrose said:

You’ll find examples i.e. actual cases (probably) on your LPA’s portal (there are on mine). Both appellant’s and LPA’s cases.

 

May take a while to find similar circumstances to yours as (at least my) LPAs search facilities aren’t the greatest.

 

Not sure why you’ll want to write one though if you’re using a planning consultant - as that’ll be their main skill.

Thanks - I've started looking at other LPAs as mine doesn't really have a lot of similar, successful appeals - bodes well !!! 

The use of the planning consultant was only after trying to write my own and finding that there wasn't really a useful template or example out there in the ether. I'm reasonably adept at writing in-depth, technical, legal and business process documents so I thought I could make a good stab at something as limited in scope as this: it's only an outbuilding and the council have agreed 95% of the various points of interest with just the subjective one about the development failing to show that it's genuinely subordinate and reasonably required.

I have my initial meeting with the planning consultant next week so I'm also hoping a best stab at a statement will help explain my perspective.
 

[IanR]

1 hour ago, phykell said:

“The proposed outbuilding fails to demonstrate that as a matter of fact and degree, due to its size and intended uses that it would be genuinely subordinate and reasonably required for purposes incidental to the enjoyment of the dwellinghouse. As such it does not constitute 'Permitted Development' under Schedule 2, Part 1, Class E of the Town and Country (General Permitted Development) Order 1025 (as amended)”.

 

The word "reasonably" doesn't appear in the Class E PD legislation, and adding it changes the meaning of the sentence. It is not required to demonstrate that the Uses of the planned buildings are  "reasonably required for purposes incidental to the enjoyment of the dwellinghouse",  they just have to be for a Use incidental to the enjoyment of the dwellinghouse.

 

For Class E it is also not required that the buildings are "Subordinate" to the main dwelling house, the size is controlled by other means. 

 

Ref. https://www.legislation.gov.uk/uksi/2015/596/schedule/2/part/1/crossheading/class-e-buildings-etc-incidental-to-the-enjoyment-of-a-dwellinghouse

 

Sorry, can't help with the Statements of Case examples, but on the face of it, it looks like you have an easy win at Appeal.

[Johnnyt]

Came across this case in Chester and Cheshire West.

Many paralells and a statement of case which may help.

 

https://pa.cheshirewestandchester.gov.uk/online-applications/applicationDetails.do?activeTab=documents&keyVal=RU12LMTEFUY00

[garrymartin]

7 hours ago, IanR said:

 

For Class E it is also not required that the buildings are "Subordinate" to the main dwelling house, the size is controlled by other means. 

 

@phykell has already mentioned this is another thread where the council's legal team have mentioned it, but Emin v Secretary of State for the Environment (1989) is regularly mentioned in relation to this. From an example appeal...

 

"12. Both parties refer to the case of Emin which confirmed that that regard should be had not only to the use to which the Class E building would be put, but also to the nature and scale of that use in the context of whether it was a purpose incidental to the enjoyment of the dwellinghouse. The physical size of the building in comparison to the dwellinghouse might be part of that assessment but is not by itself conclusive."

 

This is the part I think they are relying on, but in relation to a garage and swimming pool, I think they'd lose at appeal. A three-bay garage isn't huge by today's standards, and unless it's an Olympic size swimming pool, they'd be hard pressed to argue that the use isn't incidental because of its size.

[phykell]

3 minutes ago, garrymartin said:

 

@phykell has already mentioned this is another thread where the council's legal team have mentioned it, but Emin v Secretary of State for the Environment (1989) is regularly mentioned in relation to this. From an example appeal...

 

"12. Both parties refer to the case of Emin which confirmed that that regard should be had not only to the use to which the Class E building would be put, but also to the nature and scale of that use in the context of whether it was a purpose incidental to the enjoyment of the dwellinghouse. The physical size of the building in comparison to the dwellinghouse might be part of that assessment but is not by itself conclusive."

 

This is the part I think they are relying on, but in relation to a garage and swimming pool, I think they'd lose at appeal. A three-bay garage isn't huge by today's standards, and unless it's an Olympic size swimming pool, they'd be hard pressed to argue that the use isn't incidental because of its size.

Unfortunately, you're right - and the LPA's refusal was despite me highlighting that the pool is an existing feature and, with a required "walking/access" area around it, its area is a substantial amount of the total requested space. In fact, I'll actually be reducing the area of the existing pool by around 20% to fit it into the outbuilding as it's currently within 2m of the neighbour's boundary. And yes, it's hardly an Olympic size pool  

[ToughButterCup]

What on earth does  ...subordinate to the main dewelling house ... , and  .... genuinely subordinate ....  mean  ?

 

If, as @IanR above hints, subordination does not  refer to size, then where is subordination defined - or explained? Except - I suspect - in the mind of the LPA Officer.

I smell an easy Appeal win too.

Edited August 15 by ToughButterCup

[phykell]

2 hours ago, Johnnyt said:

Came across this case in Chester and Cheshire West.

Many paralells and a statement of case which may help.

 

https://pa.cheshirewestandchester.gov.uk/online-applications/applicationDetails.do?activeTab=documents&keyVal=RU12LMTEFUY00

That's really helpful - did you already know of it?

I looked at the statement of case and it's very clearly written but also very "concise". Many such documents are far more substantial versions, and this is the issue - where's the guidance on what should and shouldn't be expected from one of these documents? The whole point of PD was to reduce the load on council planning staff but all it's done is create another micro-industry and shifted the load, with much more overhead, onto the planning inspectorate, introducing further costs and delay to the Appellants.

[edit] Also noted that the case referenced case hasn't been decided yet - I wonder if it will be approved and how long it's going to take.

Edited August 15 by phykell
Mention pending approval

[Johnnyt]

I’ve been tracking it for a while, decision must be due soon.

Appellants final comments were due in January.

The officer’s report is worth a read too.

[kandgmitchell]

Loved that bit in the officer's report which stated that outbuildings are built to a lower standard and contain few windows..... and where they are required for lighting purposes are provided by small windows.... That person needs to get out more.

 

As to a statement of case it is what it says: it states the arguement that you use to show why the Council's decision was wrong. Usually you would state the law and then show how the Council's interpretation of that law was incorrect using but not necessarily restricted to the officer's report. A "concise" statement that gets to the nub of the matter is far better than some wordy flowery thing. In this Cheshire case the consultants dismissed the quality bit but managed to make the Council look poor for raising it, they attacked the floor area pointing out the Council's use of footprint rather than floor area, they showed each individual use was reasonable in scale etc etc. If specific court cases or other appeal decisions are available to support your case then those would be added along with how they relate to the situation. In most situations a planning consultant will have more access to that sort of information and can usually present a better case.

[phykell]

1 hour ago, Johnnyt said:

I’ve been tracking it for a while, decision must be due soon.

Appellants final comments were due in January.

The officer’s report is worth a read too.

It seems to be taking the PI a long time to process appeals. I hope mine isn't going to take as long or, that the LPA will eventually engage with me during the appeal process - this is something which the PI guidance suggests. However, it is at least reassuring to see that someone else is experiencing similar treatment so perhaps it isn't just me! 

[Dave Jones]

13 hours ago, phykell said:

Thanks - I've started looking at other LPAs as mine doesn't really have a lot of similar, successful appeals - bodes well !!! 

The use of the planning consultant was only after trying to write my own and finding that there wasn't really a useful template or example out there in the ether. I'm reasonably adept at writing in-depth, technical, legal and business process documents so I thought I could make a good stab at something as limited in scope as this: it's only an outbuilding and the council have agreed 95% of the various points of interest with just the subjective one about the development failing to show that it's genuinely subordinate and reasonably required.

I have my initial meeting with the planning consultant next week so I'm also hoping a best stab at a statement will help explain my perspective.
 

 

the problem with not using a professional to do the appeal is you dont know what you dont know and they do.

[ToughButterCup]

58 minutes ago, Dave Jones said:

 

the problem with not using a professional to do the appeal is you dont know what you dont know and they do.

 

But I have fallen into the trap of going into a meeting with 'professionals' without having thoroughly researched the likely answers.

[Alan Ambrose]

Yeah, I think it’s a matter of taste whether you hand over the whole thing to ‘trusted professionals’ or diy a bit. I generally do the latter, but sometimes that’s probably not the right course. Be aware that appeals seem to be taking forever right now. I’m not sure whether ldcs are householder or ‘other’, but I think other are the slowest - probably over a year. 
 

One strategy might be to run the appeal but put in a slightly changed application but this time badger the LPA into saying what they *will* allow. Or maybe a pre-app and push hard for a meeting. You might get a bit more traction once they figure you’re not just going away.

[Johnnyt]

We put in a draft application for costs as an appendix to our Appeal document, offering to withdraw the application if the LPA withdrew any objections to the appeal.

They didn’t, we won and got the costs award.

I did most of the groundwork  like going to see a barrister in London on direct access and getting the planning consultant to present the case.

The barrister’s opinion was invaluable and well worth the 1k.

The pressure of a costs application goes some way if you play your cards right.