Untitled Document

Appeal Ref. APPIB1740/C/00/1050922

Land at Lakeside, North Drive, Ossemsley, New Milton. ·

The appeal is made under section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 199 1. ·

The appeal is made by Mr K Duffy against the decision of New Forest District Council to issue an enforcement notice.

The Council's reference is D6/111320.

The notice was issued on the 25 August 2000.

The breach of planning control as alleged in the notice is without planning permission, the unauthorised erection of a dwelling house on the land shown hatched blue on the plan attached to the notice.

The requirements of the notice are:

i) Demolish the dwelling house to ground level.

ii) Remove all resultant debris from the land affected.

The appeal is proceeding on the grounds set out in section 174(2)(b), (c), (0 and (g) of the 1990 Act. Since the prescribed fees have been paid within the specified period, the deemed application for planning permission also falls to be considered. Summary of Decision:

The appeal is allowed, the notice is quashed and planning permission is granted in the terms set out in the Formal Decision below.

Procedural Matters 1. The inquiry lasted for two days and the evidence of the appellant and his wife was given on oath. The Status of the Notice

2. At the inquiry the appellant indicated that the plan attached to the enforcement notice showed the dwelling house in the wrong location on the land. During the course of the proceedings it became clear that an error had been made in this respect and that the dwelling was more accurately plotted on the plan produced by the appellant (Appendix 27). Although it subsequently transpired that even this plan was not completely accurate, 1 shall nevertheless use this drawing and my notes made on site to alter the position of the dwelling on the notice plan. The appellant raised no objection in relation to this proposed change and 1 shall therefore proceed on this basis.

The Ground (b) and (c) Appeals

3. The appeal building is a detached two-storey chalet style bungalow with large dormer windows in the roof and it lies on a smallholding that forms part of the former Ossemsley Estate. This agricultural land has been used for a number of farming and market gardening enterprises since the 1960's and a series of mobile homes have been approved over the years in association with the running of the holding. The last enterprise (established in January 1993) was an egg production unit for up to 4000 birds and again temporary planning permission for a mobile home associated with this unit was granted subject to the standard agricultural occupancy condition.

4. This unit, which was run by the former owners of the property, thrived and prospered and in January 1994 outline planning permission for an agricultural dwelling was granted again subject to an agricultural occupancy condition. The subsequent reserved matters application was granted in July 1995 and the approved plans showed a single storey three bedroom bungalow with a floor area of 124 square metres. Conditions attached to this permission also took away any permitted development rights associated with the new dwelling and restricted the use of the. roof space as habitable accommodation.

5. The previous owner laid foundations for the bungalow but no further work was undertaken before the appellant purchased the property in September 1997. Shortly after this time the appellant submitted an application to remove the conditions attached to the reserved matters approval but the Council rejected this in December 1997. An appeal was subsequently lodged against this decision and in July 1998 an Inspector concluded that the conditions served no useful purpose and relaxed the restrictions relating to PD rights and the use of the roof space for habitable accommodation.

6. In the mean time the appellant had started work on erecting the dwelling. He claimed that after receiving the appeal decision he continued with building work and by April 1999 he had substantially completed the approved bungalow. Although there were discrepancies between the building and the approved plans these were all minor in nature ' and they were not sufficient to put the building outside the "shield" of the original permission. Furthermore, at this time he had also completed and occupied the building for a short period and this course of action had effectively triggered the PD rights for the dwelling.

7. In these circumstances the appellant claimed that although the installation of the large dormers in the roof were not shown in the approved plan these works were in fact permitted under Part 1 Class B of the Town and Country Planning (General Permitted Development) Order 1995 (GPDO). Specific planning permission was therefore not required for these alterations.

8. At the inquiry both the principal parties accepted that before permitted development rights could be exercised in respect of a new dwelling the building concerned had to be substantially completed. No precise definition of substantially completed is available and it is clear that it will always be a matter of fact and degree. I am nevertheless conscious of Circular 10197 and its advice- about the interpretation of this term. Paragraph 2.80 states amongst other things that it is arguable a house is not substantially complete until all the external walls, roof tiling, woodwork, guttering and glazing are finished. I accept that this advice is given in relation to section 17IB(I) of the 1990 Act and the establishment of the 4-year exemption period for enforcement action. However, 1 see no reason why a similar approach should not be taken for the purposes of triggering the PD rights of a dwelling.

9. I note the appellant's claim about substantially completing the dwelling in April 1999. However under cross examination Mr Duffy admitted that the roof of the building at this time comprised of a tarpaulin laid across temporary timber supports and that in order to keep the rain out plastic sheeting had been fixed to the temporary window formers. No window frames or glazing had been installed; there was no kitchen, bathroom or shower and no permanent cooking facilities available. 1 take the view therefore that at this time the building was little more than a brick shell and as a matter of fact and degree the structure was far short of substantial completion.

10. It may well be that he chose to camp out in the building over a weekend period and that main services were present including a toilet, a sink and a Primus stove. However it seems to me that this action was a simply a ploy to circumvent the regulations.

11. Accordingly 1 cannot accept the claim that the dormer windows inserted into the roof of the bungalow were constructed with the benefit of permitted development rights. Indeed, the sheer size and scale of the works carried out above eaves level represent in my opinion a material departure from the approved plans and as such planning permission is required for this development. I therefore conclude that the ground (b) and (c) appeals must fail. The Deemed Application Introductory Remarks

12. In respect of this appeal the appellant prayed in aid the existence of a valid and extant planning permission on the site. It was pointed out that the appellant had dug the foundations of the approved bungalow and provided services in the form of mains water and drainage. These works were commenced within the time limits laid down by the original permission and as such they had safeguarded the planning commitment to a. dwelling on this land.

13. However, 1 have serious reservations about this approach. During my site visit it became clear that the building has not been sited in the correct position but rotated around 5 degrees, set back about 1 metre and moved approximately 1 ½ metres in a north easterly direction. The overall height of the building has been increased by at least 400mm and its depth extended by 500mm. Additional windows have been installed in the fenestration of the building, other windows have been enlarged and the position of the chimney-stack transposed from one gable end to the other. At first floor level large new dormer windows have been incorporated into the roof, along with roof lights and a new projecting window constructed in the south western gable end wall. Taken together all these alterations have resulted in a building that now bears little resemblance to the bungalow that was originally approved on this land.

14. It seems to me therefore that looking at this building as a whole the works on site have not, in reality, implemented the planning permission that was granted in 1994 and as such the development is unlawful. Furthermore no advantage can be taken of the previous limited acts in relation to the foundations laid by the previous occupiers of the land. These works were largely destroyed when the appellant dug the new foundations on site and commenced the unlawful development. Thus if the present building were demolished there would be no works of commencement upon which the approved building could be constructed.

15. I am also aware that the time limits for implementing the original permission have now expired. In this situation 1 am of the opinion that the unlawful building in this case has in effect superseded the previous permitted building and has closed that chapter in the planning history of the site. Consequently 1 take the view that there is no extant planning permission for a dwelling on this land and I shall therefore consider the deemed application in the light of this conclusion. Policy Background

16. The approved Hampshire Structure Plan and the adopted New Forest District Local Plan which cover this area generally seek to resist the erection of new dwellings unless they are required in connection with the essential needs of agriculture or forestry. This former holding also falls within the New Forest Heritage Area where local planning policies generally aim to protect and conserve the very special nature of the New Forest. In fact the landscape of this area has now been recognised by central government as being of national and international importance.

The Main Issue

17. Bearing this in mind and from my inspection of the site and its surroundings and the statements made at the inquiry I consider that there is one main issue in this appeal. Namely, whether the retention of this dwelling would undermine the objectives of local planning policies and if so, whether the agricultural needs of the holding or other special circumstances are so compelling as to overcome these objections.

Inspector's Reasoning

18. The appeal site lies in a relatively isolated area of open countryside some 2.5 kilometres north west of the large settlement of New Milton. The land until recently was in use as a small holding some 4.6 hectares in extent and apart from the existing dwelling it contains two outworn agricultural buildings. Access to the land is via a narrow track known as North Drive that also serves a number of other isolated dwellings and smallholdings.

19. The erection of this large detached dwelling has consolidated the sporadic residential development along the drive and seriously harmed the character and appearance of this vulnerable rural area. I am therefore in no doubt that the retention of this dwelling has undermined the objectives of local planning policies that are aimed generally at protecting the very special landscape of this part of the New Forest. Consequently I take the view that a compelling agricultural need would have to be established before any planning permission could be granted for the deemed application in this case.

20. 1 have already referred to the fact that this land has a long history of agricultural activity and that during the period from 1993 to 1996 the holding comprised of a purpose built poultry house accommodating a flock of 4000 laying birds. Indeed it was the presence of a viable egg production unit on this land that justified the planning permission for the agricultural workers dwelling granted in January 1994. Although this enterprise ceased trading some time prior to 1997 the appellant indicated that it was his intention to re-establish a poultry business on the land with a smaller flock of birds. It was also his intention to re-furbish the existing poultry house and to this end a sum of approximately £30000 had been set aside.

21. The new flock would comprise around 2250 birds kept on a free-range system with eggs being sold either directly or through a number of specialist outlets. Using the holding known as South Sway as a model it was calculated that a free-range flock of this size could achieve a profit of around £25875. Even if the standard gross margin data from the John Nix, pocket book was used for calculation purposes and account taken of the site's potential to obtain higher gross margins (because of the close proximity of the Southampton Bournemouth conurbation) a net farm profit of between £20000-25000 was still achievable. On this basis the financial test referred to in Annex 1 of Planning Policy Guidance Note 7 (PPG7) would be met.

22. With this business re-established it would be essential that the person who is responsible for the management of the egg production unit should reside on the holding. The appellant therefore claimed that this dwelling was an essential component of this agricultural enterprise and fully complied with the various-test set out in PPG7.

23. 1 do not doubt the appellant's intentions in respect of this enterprise. However, paragraphs 15(a) and (c) of Annex 1 to PPG7 indicates that a new permanent dwelling should only be allowed where the unit concerned has been established for at least three years (having been profitable for at least one of them) and there is a clearly established existing functional need. In this case there is no sign of any agricultural activity on the land, none of the buildings are in use for farming purposes, there is no livestock and indeed there have been no birds on the holding during the last three years. Consequently, the appellant's claims about the viability of the holding are no more than a set of proposals, which may or may not be met in the fullness of time. I am also conscious of the fact that although the appellant attended agricultural college 30 years ago he has never been involved with the agricultural industry and has had no practical experience in rearing poultry. His level of agricultural expertise and background is therefore unimpressive.

24. More importantly the appellant's proposed enterprise fails the functional test set out in PPG7 in that because there are no birds on the land there is no requirement for anybody to be present on a 24 hour basis to care for them at short notice. 1 therefore conclude that there is no justification for the retention on this dwelling on the grounds of agricultural need.

25. However, the appellant drew my attention to the Human Rights legislation that makes it clear that everyone has a right to respect for his private and family life, his home and correspondence. In this case 1 recognise that by upholding the notice in its present form the appellant and his young family will be made homeless. Moreover at the inquiry the Council's Planning Officer made it clear that there was very little prospect of reasonable alternative accommodation being made available. In this situation it seems to me there would be a violation of the appellant's Human Rights under Article 8.

26. 1 fully accept that these "Rights" have to be balanced against the public interest and the need to protect the environment through the application of restrictive planning policies. However the private costs in this case are very substantial and include the loss of the family home and possibly the financial ruin of the appellant.

27. There has been a long history of agricultural activity on the site going back to the 1960's, together with a commitment for an agricultural worker's dwelling on this land for the last 5 years. Although this permission has now lapsed, 1 nevertheless regard this as a material consideration in this case. 1 also have no doubt that the appellant intends to re-establish a poultry unit on the land. In these most unusual circumstances therefore 1 shall quash the notice and grant planning permission for the retention of the existing dwelling. Consequently, the appeals under ground (f) and (g) do not fall to be determined.

28. As to conditions, bearing in mind the appellant's intentions for the holding and the very restrictive planning policies that apply to this area I shall re-impose the requirement that the dwell g shall only be occupied by a person engaged in agriculture. Furthermore, bearing in mind the size of the existing house and the restrictive approach to such dwellings in the Heritage Area 1 shall remove any permitted development rights associated with this building.

Formal Decision

29. In exercise of the powers transferred to me, 1 direct: (a) That the enforcement notice be corrected by the substitution of the plan marked HWJR 1 annexed to this decision for the plan attached to the notice. (b) That in paragraph 3 of the notice the words "hatched blue" be deleted in their entirety and substituted by the words "hatched black".

30. Subject to this correction I allow the appeal and direct that the enforcement notice be quashed. I grant planning permission on the application deemed to have been made under section 177(5) of the Act as amended for the erection of a dwelling house as already carried out on land at Lakeside, North Drive, Ossemsley, New Milton, Hampshire as shown on the plan attached to the notice, subject to the following conditions:

1) The occupation of the dwelling shall be limited to a person solely or mainly working, or last working, in the locality in agriculture (as defined in section 336 of the Town and Country Planning Act 1990 as amended) or forestry, or a widow or widower of such a person, and to any resident dependants.

2) Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any order revoking and re-enacting that Order with or without modification), no building or other alterations permitted by Part 1, Classes A, B and C of the second schedule to the Order shall be constructed or carried out without the written consent of the Local Planning Authority.

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