Planning Appeals - Statement of Case Examples

[IanR]

13 hours 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...

Emin is regularly mentioned in similar Appeals, but not regarding size, in the Emin case it was held that the size of an outbuilding is not relevant for the purposes of Class E, but the building must be ‘required for some incidental purpose’ in relation to the dwellinghouse. Another case often quoted is Wallington v SSE & Montgomeryshire DC [1990] from which the notion that it is the incidental activities that should be reasonably scaled to the dwellinghouse. The size of the outbuildings should then be appropriate to those activities. ie. if the dwelling house can accommodate 6 people, then it would be unreasonable to build a recreational outbuilding that can accommodate 50 (exaggerated) people in the stated activities.
 

12 hours ago, ToughButterCup said:

If, as @IanR above hints, subordination does not  refer to size, then where is subordination defined - or explained?

There's not a specific planning definition, so take the Oxford dictionary. ie. "lower rank", which doesn't mean smaller. Primary use is dwellinghouse, subordinate use is outbuilding. The dwellinghouse can exist without the outbuilding, but the outbuilding is pointless without the dwellinghouse.

Edited August 15 by IanR

[Alan Ambrose]

In planning officer speak ‘subordinate’ means ‘size’. They used about 9 synonyms for size in response to one of my applications. Without specifying what an appropriate ot acceptable size is, of course. All part of the usual planning cat-and-mouse guessing game.

[IanR]

7 minutes ago, Alan Ambrose said:

In planning officer speak ‘subordinate’ means ‘size’. They used about 9 synonyms for size in response to one of my applications. Without specifying what an appropriate ot acceptable size is, of course. All part of the usual planning cat-and-mouse guessing game.

 

I've never seen that. Loads of Class E examples where it relates to a Subordinate Use though, which would match it's dictionary meaning.

[Alan Ambrose]

Ah interesting, maybe I'm mixing 'subordinate' and 'subservient' - the latter always reminds be of some forelock touching in the middle ages. Coming from the peasant classes, it always grates 😀.

[joe90]

With a previous loft conversion of mine Bristol City Planners deemed dormers were to be “subservient” to the main roof (I.e. dormer ridge below house ridge).

 

https://dictionary.cambridge.org/dictionary/english/subordinate

[ToughButterCup]

On 21/08/2024 at 10:22, Alan Ambrose said:

Ah interesting, maybe I'm mixing 'subordinate' and 'subservient' -

 

I still struggle with those two words (my native language is German) . So I had a quick look and found this. 

No wonder I'm still struggling with it. I mean it's not far off the confusion I feel when I listen to plumbers talking about irons and olives

.... or @SteamyTea  and his Killerwots

 

Edited August 22 by ToughButterCup

[joe90]

10 minutes ago, ToughButterCup said:

I still struggle with those two words (my native language is German) .

My native language IS English and I struggle with them. 🤪 I would want to debate this with the planners but you can never get them to even answer the phone.

[Alan Ambrose]

@SteamyTea  and his Killerwots

 

I think you mean kiloWhatsOurs surely or is it thermspicoS, or maybe microJoulesYars?

[ToughButterCup]

Oi 'spektid 'im ter Post dreklee. Bud 'un dint. 

 

 

[phykell]

The latest update to my particular saga is that I'm a couple of weeks away from the appeal deadline and it seems that I need the original application form. Unfortunately, it's mysteriously "disappeared" from the LPA's planning portal. All the other documents, including plans, etc. are all there, just the one I need, the one that's automatically generated (I believe) on submitting the application.

 

Tried to contact the LPA and the case officer is out of the office - asked to escalate to the line manager but I doubt I'll hear back.

[kandgmitchell]

Try planning admin - whilst they can be a bit pedantic at times in some councils, I've often found them surprisingly human in others. They're more likely to know what goes on with the paperwork than the case officer. Think nurses in a hospital knowing far more than doctors about the "process".

[phykell]

11 minutes ago, kandgmitchell said:

Try planning admin - whilst they can be a bit pedantic at times in some councils, I've often found them surprisingly human in others. They're more likely to know what goes on with the paperwork than the case officer. Think nurses in a hospital knowing far more than doctors about the "process".

I think I spoke too soon (often happens) - the line manager immediately emailed me back with the missing form. It might not have been included on the portal listing in the first place but they're resolving that now.

OK, onto my appeal, which is now being handled by a professional planning consultancy - wish me luck 😎 

[SBMS]

On 15/08/2024 at 09:30, phykell said:

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%

What is your planning consultants view?
 

My counsel would not be to focus on what’s existing, reduction in space, existing pool etc. Whilst logical in our minds, they don’t form part of the planning policy around permitted development rights, and I don’t think would be considered on appeal. I think in a full plans application, an inspector might give weight to these facts as there is policy around existing development but I don’t think there would be for PD. I would suggest to others to keep your appeal (if you’re writing it yourself) to the absolute facts and policy on the ground - and that’s the issue of ‘incidental to the dwelling house’. Which I would think is clearly demonstrable in your case. Don’t give the inspector any opportunities to respond negatively to your appeal by including things that don’t serve your application.

 

Be interested to know if the above is consistent with your consultant’s view, or if they think your existing site makeup is material to the appeal? 

Edited September 11 by SBMS

[phykell]

19 hours ago, SBMS said:

What is your planning consultants view?
 

My counsel would not be to focus on what’s existing, reduction in space, existing pool etc. Whilst logical in our minds, they don’t form part of the planning policy around permitted development rights, and I don’t think would be considered on appeal. I think in a full plans application, an inspector might give weight to these facts as there is policy around existing development but I don’t think there would be for PD. I would suggest to others to keep your appeal (if you’re writing it yourself) to the absolute facts and policy on the ground - and that’s the issue of ‘incidental to the dwelling house’. Which I would think is clearly demonstrable in your case. Don’t give the inspector any opportunities to respond negatively to your appeal by including things that don’t serve your application.

 

Be interested to know if the above is consistent with your consultant’s view, or if they think your existing site makeup is material to the appeal? 

The summary was that the LPA's argument was poorly founded as the main issue, that of it being solely for incidental use, was a straightforward case to make as far as they were concerned. It was clear that none of the anticipated activities supported by the outbuilding could be reasonably viewed as being anything other than incidental, e.g. a garage, swimming pool, plant room, shower/WC/changing area. 

 

I agree that the reduction in space, and the existing pool, shouldn't have anything to do with PD but, in this instance, the LPA cited case law to backup their claim that, although all of the formal PD requirements were met, the overall scale of the outbuilding was unreasonable or, to put it another way, wasn't proven to be "reasonably required for purposes incidental to the enjoyment of the main dwellinghouse".

It was therefore necessary to prove that the overall size of the outbuilding was based on reasonable requirements which is why the existing pool was mentioned, i.e. here's the original pool, and its size is the basis for the new pool (in terms of length at least). We went into additional detail regarding the size of the plant room, and how it was based on a suggested size from a pool installation specialist. We also discussed the amount of walkway room around the pool, again referencing pool specialists, and the need for an area to house the pool cover (under the walkway) and the skimmers and associated pipework. The aim of all this was to show the LPA that the outbuilding's size wasn't in any way arbitrary, and was, in fact, based on good practice and industry recommendations. Regarding the garage, I provided a detailed plan showing all of our current vehicles, drawn to scale on the plan, to demonstrate genuine and complete utilisation of the available space.   

 

In the end, although I'd written my own Statement of Case, I decided, on reflection, to have the planning consultant handle the appeal process for me.

 

The appeal was validated successfully and is now lodged with the Planning Inspectorate, just before the six-month deadline, luckily.

[Alan Ambrose]

>>> the LPA cited case law

 

I would be interested to read that  - presumably they quoted case references. They cited case law in the rejection of your planning application already? Next step is for them to file their statement of case, and then both parties can submit final comments. Don't hold your breath.

 

FYI my LPA ignored the planning appeal procedural guide ( https://www.gov.uk/government/publications/planning-appeals-procedural-guide/f90d5f21-de2c-43cd-b743-6c81b9a1b70f ) in its statement of case and (a) bought up new issues, (b) didn't summarise the issues in dispute as required. When challenged, the inspector said words to the effect 'what can you do, it's only guidance' and allowed the LPA's new issues and their V-sign to the guide. He did award me costs though. If you detect any LPA dodginess, then file for costs (the principle, not the amount) straight away and keep a record or have some way to know how much time you and others have spent and therefore justification for the costs amount.

 

[phykell]

13 hours ago, Alan Ambrose said:

>>> the LPA cited case law

 

I would be interested to read that  - presumably they quoted case references. They cited case law in the rejection of your planning application already? Next step is for them to file their statement of case, and then both parties can submit final comments. Don't hold your breath.

 

FYI my LPA ignored the planning appeal procedural guide ( https://www.gov.uk/government/publications/planning-appeals-procedural-guide/f90d5f21-de2c-43cd-b743-6c81b9a1b70f ) in its statement of case and (a) bought up new issues, (b) didn't summarise the issues in dispute as required. When challenged, the inspector said words to the effect 'what can you do, it's only guidance' and allowed the LPA's new issues and their V-sign to the guide. He did award me costs though. If you detect any LPA dodginess, then file for costs (the principle, not the amount) straight away and keep a record or have some way to know how much time you and others have spent and therefore justification for the costs amount.

 

The case law that they cited is very well known when an applicant has met all the PD requirements but (in my anecdotal experience) the LPA has a particular interest in stopping the development. 

 

The two cases they mentioned were:

 

Emin case [Emin v SSE & Mid Sussex DC [1989] JPL 909] - held 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. Their basis for citing this was that, "There is no statutory definition of 'incidental' in the GPDO."

 

Wallington case [Wallington v SSE & Montgomeryshire DC [1990] JPL 112; [1991] JPL 942 (CoA)] established that it is necessary to consider whether the relevant purpose is incidental to the particular dwellinghouse in question rather than any dwellinghouse.

They did mention a further case, for an aircraft hangar built under PD - it was an odd case to cite as the applicant was successful! Apparently, it's OK to build an aircraft hangar on your property if you say it's a hobby but my outbuilding for a garage and pool, was still rejected!

 

 

[IanR]

53 minutes ago, phykell said:

it's OK to build an aircraft hangar on your property if you say it's a hobby but my outbuilding for a garage and pool, was still rejected!

 

And the moral of this story is to choose activities that require lots of indoor space but only for the number of occupants in the dwellinghouse + a few friends, as the justification on the LDC.

 

Bowling alley anyone?