Planning Refusal, Council considers residential garden to be open countryside.

LunarLunar · 2 Feb 2016

I've seriously thought about it PTS2. But i think they're more on the NIMBY mentality.

They did however, manage to accost the planning officer whilst on site, which no doubt resulted in some major discussions against our application. One has gone as far as attempting to get the council to enforce this whole 'paddock land' which thankfully they've said they're unlikely to. Either way we're seeking legal advice on the matter.

PTS2 · 2 Feb 2016

Well I don't know whether what you want to do is 'good' or 'bad' in planning terms as I haven't seen what it looks like. What do your mates think if asked to give an honest opinion? However I reckon it's debatable whether a barn (later converted) which is a hundred or so meters from a manor house was ever in the curtilage of that house. It's the sort of question that gets a lawyers a new porsche.

Nakajo · 3 Feb 2016

Yes. Much clearer, thanks. It is inconceivable that (former) agricultural cattle sheds 200m from a house could be (or could ever have been) considered to be within the domestic curtilage of that building, listed or otherwise (unless the cows were kept as pets). Quite what that then means for your proposed works, I’m not quite sure. I’d like to see the evidence that PD really was revoked for these dwellings, but either way, I cannot see that the existence of a listed building within the vicinity has any bearing on this matter.

PTS2 · 3 Feb 2016

If the planners are using 'curtilage listed' as a reason to reject the application then I'd be thinking the planners simply don't like the idea but haven't got any planning law reason to reject so are making things up to suit them. Maybe it really is an eyesore, maybe the neighbours are mates with somebody at the council.

Perhaps the real reason might be the new building is going in an old field and that field is now part of a garden. Planners now want to stop building in what is really open countryside, which is fair enough, but it's not open countryside anymore because the planners didn't do their job properly when the developers did an unlawful change of use for that land. But the planners can't say that. Developers do that sort of thing as they make sure they have mates in the council....

Who knows.

Nakajo · 3 Feb 2016

PTS2 That change of use *may* have been unlawful when it occurred in 2010. However, I understand it would be PD under Class Q if taking place today, so I really can't see what the planners are going on about.

jeds · 4 Feb 2016

This is a bit confusing because you started by saying the LPA refused your application because it was in an 'open countryside' location and then it moved onto listed status. The two are different matters.

Firstly, whether you are in a countryside location or not is a question of fact. If the land has been used as a domestic garden for 10 years then it is domestic curtilage and not open country side. In that case you should be able to secure a LDC and it doesn't matter what the LPA or your neighbours think. If it's garden they cannot with hold an LDC. Once you have your LDC you can get on and build your outhouses under PD.

If you are in a listed curtilage then of course your PD rights are restricted, so the next question is are you? From what you say so far I can't see that you are. Context and ownership are key factors. Prove that you are not and you can proceed under PD.

LukeB123 · 4 Feb 2016

jeds said:
Firstly, whether you are in a countryside location or not is a question of fact. If the land has been used as a domestic garden for 10 years then it is domestic curtilage and not open country side. In that case you should be able to secure a LDC and it doesn't matter what the LPA or your neighbours think. If it's garden they cannot with hold an LDC. Once you have your LDC you can get on and build your outhouses under PD.

LunarLunar said:
The barns were then sold off to a developer back in 2010, I believe and subsequently converted in to separate dwellings.

Going to say that they won't be able to argue, and then the whole argument that curtilage is not a land use anyway.

I personally would of appealed the original refusal as it's a free service, just to see what the inspector would summarise.

LunarLunar · 10 Feb 2016

Sorry for the late reply, we really are just trying to nail down our next step.

And yes, it seems it will involve a new Porsche and unfortunately it won't be mine! I won't pretend to know anything about planning so i'll copy and paste refusal that we had.

If I'm being perfectly honest, the proposal was for a structure 4 meters high, 11 meters long, same as another storage barn on site but smaller than the the asbetos one that it would conceal from out sight line. We were a little bit naive in taking advice from our architect who at the time suggested to go for a building as large as we'd want. He's idea was that at appeal we could then resubmit a much smaller building. In reality i think it was too high and this upset the two neighbours, who believe that our submission is ostentatious.

In anycase we've passed the deadline to appeal. So its either a new application or a LDC.

Permission is refused for the following reasons:

1 The proposed outbuilding would by virtue of its size, scale, location and elevated position have an overbearing impact on the neighbouring occupants of 1 XXXXX, in conflict with Policy GEN2 and Policy H8 of the XXXXX Local Plan (adopted 2005) and the National Planning Policy Framework.
2 The development of this site would result in additional built form in the countryside which would be detrimental to the open and rural character of the surrounding countryside. The proposed development does not need to take place there and is not appropriate to the rural area. There are no material considerations which would outweigh the harm of the development in this location. The outbuilding would be large in size and scale and would result in an outbuilding that would visually dominate the site and not preserve the openness of the countryside. The development would be contrary to the ULP Policies S7 and GEN2 of the XXXX Local Plan (adopted 2005) as well as the NPPF.
3 Policy ENV2 of the XXXXX Local Plan (adopted 2005) states that development will not be permitted if it would adversely affect the setting of a listed building. The National Planning Policy Framework states that, if a development would lead to less than substantial harm to the significance of a designated heritage asset, this harm should be

weighed against the public benefits of the proposal, including securing its optimum viable use. The proposal by way of elevated position and massing would not respect the primacy and setting of the host listed dwelling. There are no public benefits which would outweigh this harm, contrary to Policy ENV2 of the XXXX Local Plan (adopted 2005) and the NPPF.

LunarLunar · 10 Feb 2016

Jeds, the land was never a garden in the first place. What is now a garden was a farm yard. And the proposed location had a large agricultural storage shed up until 4 years ago and the barns themselves have only been in use as domestic dwellings since early 2013.

LunarLunar · 10 Feb 2016

Apologies for the multiple posts.

Nakajo, in the original decision notice for the entire development PD was revoked. Or certainly thats what we've assumed from the following;

"Notwithstanding the provision of the Town and Country Planning (General Permitted Development) Order 1995 (or any Order revoking or re-enacting that Order with or without modification), no extensions shall be constructed (other than any expressly authorised by the permission or any other grant of express planning permission) on any part of the site without the prior written permission of the local planning authority.

REASON: To protect the historic character and appearance of the listed buildings, in the accordance with XXXX Local Plan Policy ENV2 (adopted 2005)"

Nakajo · 10 Feb 2016

It's quite useful if you include this sort of information at the top of the thread. Nonetheless, that does appear to be the model citation intended to preclude permitted development. So, the site in question is within your domestic curtilage, but your permitted development rights have been withdrawn.

On this basis, I would maintain that points 2 & 3 could be challenged on appeal. If it was me, I'd resubmit a smaller scheme (the LPA may allow a submission under the 'one-free-go' policy), and appeal the refusal if the reasons given were similar to those above.

I wouldn't bother with a pre-app, as you now know the 'lay of the land'.

LunarLunar · 10 Feb 2016

I have to admit this withdrawal of permitted development only came to light in the last couple of days! So much for paying a consultant to look into all these matters. I seem to have done the majority of the leg work myself!

I agree with you Nakajo, our Planning consultant is adamant that a LDC is the way to go. I personally don't see the benefit as the council has already indicated their view on it.

oldbutnotdead · 11 Feb 2016

LunarLunar said:
I have to admit this withdrawal of permitted development only came to light in the last couple of days! So much for paying a consultant to look into all these matters. I seem to have done the majority of the leg work myself!

I agree with you Nakajo, our Planning consultant is adamant that a LDC is the way to go. I personally don't see the benefit as the council has already indicated their view on it.

There's a massive difference between council 'indicating their view' and council 'refusing certificate of lawful development'.

The council may not like your plans and may well be trying to discourage them by using generic fluffy terms and without referring to any specific legislation or policy. But if you apply for LDC (or PP) and they turn you down they HAVE to have specific lawful grounds to turn you down. And they may well not have any of those. By applying for LDC you are calling their bluff - if you were in a card game you are paying to see their hand. They may have a bag of aces- or they may not.

LunarLunar · 22 Apr 2016

I know this thread is fairly old now. But I just wanted to update, for anyone who may find it useful.

Lawful development certificate went in just over 12 days ago. The case officer has indicated that that it will be refused; "curtilage listing of the application site and the fact that the particular part of the site does not fall within the lawful residential curtilage". We used the following case law to argue the extent of the curtilage; Sutcliffe v Calderdale BC [1983] J.P.L. 310, Sumption v Greenwich LBC [2007] EWHC 2776, Debenhams v Westminister City Council [1987] A.C. 396. We hoped by arguing that our barn should not have been listed by virtue of the manor house, that we'd then be able to use Permitted Development Rights.

I'm confused. On one hand the neighbour that has vermently objected from the beginning, tried and failed to get enforcement on this area of our garden. And the gardens of our other neighbours. The case was closed with no further action taken. Yet here we are still being told that this piece of land is agricultural and not residential. We're at a loss on which route to take. We will definitely be appealing. Although I feel that a change of use application will be nessecary to draw a line under this paddock land issue, and of course there's no guarantee that the change of use will be approved anyway.

Back to the drawing board.

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Planning Refusal, Council considers residential garden to be open countryside.

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