All posts in Appeals

Residents of the village of Hunwick are celebrating after a planning Inspector dismissed an appeal for a proposed specialist care home in the centre of the village. Prism Planning had advised the local residents. It is the second time villagers have had cause to celebrate as Prism also helped the same residents overturn the original officer recommendation to approve the development. Steve Barker of Prism Planning originally addressed Durham’s Planning Committee on behalf of the residents and persuaded all of the Planning Committee that the scheme should be refused because of the impact of the scheme on the quality of village life. The Committee’s decision was subsequently taken to appeal. The residents now hope that this is an effective end to the matter and normal village life can be resumed. The case was notable for its focus on the fear of crime and antisocial behaviour in a tight knit community. With Prism’s assistance, the village was able to persuade the Inspector that care homes had given rise to identified increases in crime and antisocial behaviour in other areas and that as a consequence the villager’s fears were founded upon a credible position. The impact of this on community cohesion was found to be unacceptable. The decision sends out a very clear message about taking realistic community fears into account when considering the long term impacts of such developments.
A Government Planning Inspector has agreed with Prism for the second time regarding a scheme for providing log cabins on a site at Easby, near to Richmond. The Inspector overturned the decision of Richmondshire District Council to allow development on the site for a limited period of time and instead gave a full planning permission for three years to enable the development to progress. This was the second time that Prism had been forced to go to the Planning Inspectorate to overturn the decision of the Local Planning Authority on this site. Initially permission was refused by the Council for the development and granted at appeal in 2010. Due to the complexities of the site and the uncertain economic situation in the intervening period, we sought to use new provisions to extend the life of the planning permission for a further three year period. Most applications of this nature are routinely renewed unless there has been a change in circumstances. The Council decided to only grant planning permission for a twelve month period and gave confusing and unclear reasons why this would be appropriate. At appeal, the Planning Inspector noted that the Council’s reasoning was flawed and fully agreed with all of the points raised by Prism on behalf of our client. In particular, the Inspector noted that the Government intend to give clear support for developments which help to improve the rural economy and that the scheme was and always had been of a particularly high design and well thought out. Because of these points, he had no hesitation in granting permission for a full three year period which will enable the scheme to progress. This is an important decision to have as it underlines the Government’s expectations that permissions will be renewed for a full three year period whenever there has been no change in circumstances and reaffirms the Government’s continued support for the rural economy. This is the second application that we have had approved this week relating to the rural economy – see next blog for a holiday cottage approval in Aislaby close to Yarm.
Eight and a half months after it was first submitted, the Planning Inspectorate have just allowed permission for a hot food take away to extend its opening hours which has made a nice, if somewhat belated Christmas present for our client. The appeal referred to a hot foot takeaway located within a local shopping parade in Redcar comprising a mix of units, including another hot food takeaway, a number of which open later into the evenings. Planning permission was originally granted for the change of use of the property to a hot food takeaway with opening hours restricted to 9.00 am to 7.00 pm hours Monday to Saturday and closed on Sundays. Subsequently, temporary planning permission was granted on three separate occasions since 2009 allowing the premises to open until 10.00 pm every day. The temporary nature of the permissions was in order to allow continued monitoring by Redcar & Cleveland Borough Council of the impact of the later opening of the premises. As far as we are aware no issues arose and in January 2013 our client applied for a permanent permission that would allow the takeaway to open until 11.00 pm each day. However, the application was refused by the Council’s Planning Committee and we were engaged to submit an appeal to The Planning Inspectorate contesting the Council’s decision. During the appeal process we were asked to consider a condition the Inspector was considering whereby the takeaway would close at 10.00 pm on Sundays, bringing the closing times of our client’s takeaway in line with that of the other takeaway within the shopping parade. We advised our client to accept the compromise suggested by the Planning Inspector and we believe that this helped in the successful outcome of the appeal. Our client is over the moon with the decision, which has arrived just in time for the busy festive season. As a side note, the appeal highlights the generally appalling situation in the Planning Inspectorate with speed of decision making lagging way behind where it should be for such an important institution. We hope that Father Christmas brings them some additional resources in the New Year to improve the current situation!
Prism have just won permission at appeal for a farmhouse to help a well established farming family continue their business through into the third generation. The case involved a mixed use arable and sheep farm with a growing line in breeding heavy horse hunters at Town Farm, Stillington. With around 500 sheep already on the farm and a developing equine business we were confident that there was a robust case to pursue. However the Council weren’t so sure and employed a national firm of experts to help them assess the case. The Council’s advisors seemingly hadn’t read too much of the National Planning Policy Framework and wrongly advised the Council on a range of key matters. At the ensuing appeal, the Inspector found that both the Council and their experts had wrongly applied national tests in their assessment, being unduly pessimistic as to the labour needs of the holding and critically, had tried to disaggregate the various parts of the farming business. This was a fundamentally wrong approach and Prism’s approach was found to have been correct. The case marks our third appeal win in a row for our specialist agricultural work and has established us as one of the regions leading expert practitioners in this field. Coincidentally it was also our third win in a row for equine related work and shows that it’s not always a good idea to take advice from some of the national firms whose specialist knowledge is not quite so robust when it really matters.
A Planning Inspector has agreed with Prism and allowed a log cabin to remain on a Durham Pick Your Own Farm whilst a transition takes place between generations of the family farming the land. Our client had sited a log cabin on his farm, having initially been advised (incorrectly) that he didn’t need planning permission. The cabin was used by our client and his partner whilst they farmed the 13ha of land, growing strawberries, asparagus and other high value crops. The existing bungalow on site was occupied by our clients parents who, in their 80’s and in poor health were no longer able to work on the farm. The Council had issued an enforcement notice within a few days of the cabin being erected on the site and seemingly weren’t prepared to consider the personal circumstances of the family or the needs of the farm. At the ensuing appeal hearing, the Inspector took a different line and accepted that; “Because of these personal family circumstances, the siting of the chalet in the short term, as a transition between the farming generations, is acceptable for a temporary period as an exceptional case.” And he went on to quash the Councils enforcement notice. The case is an interesting one from a number of perspectives. Firstly, despite the demise of Annex A to PPS7 in the bonfire of national planning guidance that accompanied the publication of the National Planning Policy Framework, all parties have freely applied the guidance as if it remained in force. Secondly the case confirms the application of the principles established in Keen, that is a retired farmer and their dependants can remain on their farm as long as they wish, without the fear of having to leave to make way for the next generation of farmers. It is pleasing to see a planning inspector looking outside of the policy framework to the real life challenges that farmers face in running their holdings and making a sensitive and compassionate decision that has allowed our client to concentrate on running his business. Perhaps the most important lesson from this case is to be beware the snake oil salesmen who tell you that planning permission isn’t required for one of their log cabins. Before placing an order for one, or if you’re in doubt, contact a reputable planning consultant to have your position properly checked out.
A Planning Inspector has just overturned a decision by Durham County Council and granted planning permission for a new 500KW anaerobic digestion (AD) plant on a farm at East Hedleyhope, Bishop Auckland. The proposed plant and associated combined heat and power plant would provide electricity and heat out of digesting farmyard manure and other organic wastes. The case establishes Prism as one of the leading planning consultancies with expertise and in depth knowledge of the AD process. Prisms involvement was secured by Paul Palmer of CH4 Sense, a leading provider of AD services ch4sense.co.uk. The application was submitted to Durham County Council in June 2012 and although initially supported by officers, was refused by the planning committee in November 2012 with members disagreeing with officer’s assessment of the case. Members were concerned over the visual impact, odour, noise and the overall sustainability of the project. The decision of the Council was taken to appeal and an Informal Hearing took place in April 2013. In allowing the appeal, the Planning Inspector noted that the Council had not considered the National Anaerobic Digestion Strategy and considered that the Council’s policy base carried very little weight, being written well before the publication of the National Strategy in 2011. The Inspector considered that the tanks, although large in scale, would present itself as components of an existing farm and would have been properly screened by the landscape belt proposed in the application. In looking at the noise nuisance, he noted that the scheme did not breach World Health Organisation guidelines for night time noise and in looking at the odour decided this was something which would be properly regulated by the Environment Agency in due course. He considered that the Planning Authority were wrong in trying to adopt a precautionary stance in assuming that matters might go wrong. He went on to consider that this was a highly sustainable location for this type of development and was consistent with the National Anaerobic Digestion Strategy published by the government. He criticised the Council for seeking to locate such developments in existing industrial areas noting that certain types of AD facility would require large amounts of land to operate and they could not be expected to locate in general industrial areas to apply the presumption on favour of sustainable development established in the National Policy Framework for Planning and granted consent. Unusually, he went on to allow a full claim for costs against the Council noting that the members had departed from the professional advice of their officers without proper grounds. He was very critical of the Council applying a precautionary principle when advice clearly states that it is not their role in the planning system to do so. He concluded that the Council’s reasons for refusal were not justified or supported by any written or visual evidence and that the Council had put the appellant to the unnecessary cost of preparing evidence for and attending the appeal. Prism, and their client were delighted with the outcome of the appeal, noting that it was a complete vindication of the case they had argued and presented to the Council throughout the planning application process. In particular, Prism had supplied the Council with information covering all the points of concern and had sought to allay fears in these important areas. That this presentation of information was ignored by members is regrettable. However the AD process in the UK is still at a relatively young stage and it is perhaps understandable that fear of the unknown creeps into the decision making process. Hopefully this decision will show clearly that AD is here to stay and are properly considered proposals with well argued evidence should not be refused except on very specific and clear grounds. Prism look forward to working with the Council to get the scheme up and running in the very near future.
Its not very often that a client comes to us in receipt of a listed building enforcement notice requiring him to take down a flue to a log burning stove -but this is just what happened to one of our clients recently.  Thanks to Prism efforts, a Planning Inspector has just decided that he can keep the stove and the LPA have been found to be heavy handed in their actions.

Living in a converted barn, our client had installed a very efficient log burning stove. Following the best practice guidance of English Heritage (EH), he had installed a modern flue that ran  up inside the barn and which just ‘peeped’ out of the gable below the ridge. As recommended by EH he had gone to the additional trouble and cost of having the flue coloured matt black to minimise its visual impact. The LPA thought this was wrong and took the unusual step of issuing a listed building enforcement notice requiring the removal of the flue.

The success rate of appeals against these types of actions isn’t high, with the benefit of the doubt often going to the Council. Prism recommended an informal hearing to try to get across to the Inspector the full facts of the case and to more effectively challenge the arguments of the Council. Normally the Inspectorate take 6-8 weeks to make their findings known but in this case just a week after the hearing the Inspector found for our client and allowed the flue to remain. 

The Inspectorate fully supported the use of logs as a renewable fuel and accepted  that our clients proposals hadn’t had the damaging impact upon the building that the Council claimed. He also noted that the neighbours, who had complained about the flue, had an even bigger and more obtrusive flue on their own property!

Its very unusual for Listed Building Enforcement Notices to be served and still more unusual for the Councils actions to be overturned at appeal. Prism are delighted to have been able to win the case for the client.
Following on from our work with Kirklevington Riding Centre, Prism Planning have secured permission at appeal for a new house at Crows Meadow Farm, off Dalton Back Lane, Dalton Piercy, near Hartlepool. The Planning Inspectorate granted the appeal and awarded full costs against the Council for what was agreed to have been an unnecessary appeal which has delayed the construction of a house on the site for no clear reason. Our Clients had been operating a successful riding centre from the site for over three years. The business offers full and ‘part-time’ DIY livery services for horse owners in the local area. During this time, the family have lived on site in a mobile home, which was granted a temporary permission in 2007. Having demonstrated the viability of the business over the intervening period, Prism Planning submitted a planning application for a permanent house on the site in May 2011. The business could successfully show a need for someone to live on site and be available to look after the horses; the proposed house complied with all relevant local and national planning policy. Despite this, the application was still undecided 5 months later with no positive end in sight. The Councils officers ignored several pieces of key national policy during the consideration of the application and considered trying to impose legal agreements on the proposals which were wholly improper. Due to the delay, and position the Council adopted, an appeal against the Council’s failure to determine the application was submitted by Prism Planning and a hearing was later held at the Council offices in January 2012. In allowing the appeal, the Inspector found the Council to be “unreasonable” in their behaviour and “unreasonable” for not determining the application within the usual timescale. Whilst we always try to have a productive relationship with the Councils we work with, there are times when the only way forward is to appeal. When we appeal we aim to win and this is a result that we are very proud of and adds to our impressive success rate. This is the second equestrian dwelling we have won at appeal in the last few months and shows that our in depth knowledge reaps benefit for the client. It is of course disappointing that taxpayers money was needlessly spent opposing such a sound case where there was no practical reason for the delay. Our case studies pages will be updated soon…

Appeal Costs

Welcome to Prism’s first attempt at a planning ‘blog’. I know that it’s probably not as exciting as learning what David Cameron has just had for breakfast but there are things happening out there in the planning world which affect the way in which we all do business. We thought we would start off by looking at the new changes to the appeal system, in particular the new abilities to claim costs across the board. If this might be of interest to you, read on…… If not, either go back to Mr Cameron’s breakfast for the day or tell me what else you would find interesting! When fighting a planning appeal, both sides are responsible for their own costs, regardless of who wins or loses. The only time this script is departed from is when one party behaves unreasonably. Even then, the aggrieved party can only apply for costs if the appeal is being heard at either a public inquiry or an informal hearing. These formats account for only a very small proportion of appeals –less than 10%. The alternative format of appeal, the written representation, is the cheapest and quickest but couldn’t be used to claim costs back except in specialist enforcement cases.That’s all changed now under new rules that came into effect on 6th April. From now on, any appeal started after that date, regardless of whether its written representations, informal hearing or public inquiry can be used to claim costs where a party has behaved unreasonably. Usually it’s the appellant aggrieved with the LPA which wants their costs but potential appellants need to understand it works both ways. Lodging any form of frivolous appeal can work against you but in my experience this rarely happens. The new guidance goes on to give examples of what the government will consider to amount to unreasonable behaviour and it throws up some interesting new areas for you all to be aware of. I thought I would draw your attention to a few of these in this note –some of them might cause your eyebrows to raise! 1) It is expected that applicants and LPA will have constructive pre-application discussions with each other. Where the LPA refuse or fail to provide reasonably requested information this can be valid grounds for an award. 2) Determining applications in an inconsistent manner! 3) Imposing conditions that fail the key tests set out in Circular 11/95 4) Refusing an application for a reason that could be overcome through the imposition of a condition instead. 5) Requiring the applicant to enter into a S106 agreement, the terms of which exceed current government guidance. 6) Relying on third parties to substantiate reasons for refusal 7) Withdrawal of grounds of refusal. 8) Not providing or agreeing a ‘Statement of Common Ground’ where relevant for an inquiry. One area I thought I would bring to you specific attention concerns those times when you have a problem and are negotiating on a solution and then the Council decide, for reasons of their own performance that they are going to refuse your proposals. I know we have all faced such frustrating scenarios. The new guidance does not deal with this head on but there is a reference to an oblique situation which may be of interest. Where you are negotiating with the Highways Agency and are close to reaching a solution, the guidance does tell you that if the LPA refuse the proposal without waiting for the solution to emerge, they may be considered unreasonable because their actions have resulted in an unnecessary appeal. The principles established by this will be interesting to say the least. We need a few ‘test cases’ to emerge and clarify just how far the Inspectorate have been told to go. What is clear is that LPA’s are far more exposed to costs than was previously the case and the scope for what is considered unreasonable has become much wider. Like everything in the planning world, there is an enormous paper chase surrounding how all of this is to be administered and great deal of bureaucracy. However it’s all familiar to us at Prism so give us a shout if any of this strikes a chord with you.