Case Reference: 3258467

Appeal Decisions
Virtual Hearing Held on 4 May 2021
Site visit made on 23 February 2021
by M Madge DipTP, MA MRTPI
an Inspector appointed by the Secretary of State
Decision date: 2nd August 2021
Appeal A: APP/N4720/C/20/3258467
Appeal B: APP/N4720/C/20/3258468
Land at Hollinholme, Swillington Lane, Swillington, Leeds LS26 8BZ
• The appeals are made under section 174 of the Town and Country Planning Act 1990 as
amended by the Planning and Compensation Act 1991.
• The appeals are made by [APPELLANT] against an enforcement notice issued by Leeds City Council.
• The enforcement notice was issued on 31 July 2020.
• The breach of planning control as alleged in the notice is without planning permission,
the unauthorised demolition and erection of a new detached dwelling and partially built
structure within the Green Belt.
• The requirements of the notice are to demolish the dwelling and partially built structure
in their entirety and remove all the materials from the demolition from the land.
• The period for compliance with the requirements is 6 months.
• Appeal A is proceeding on the grounds set out in section 174(2)(c), (a), (f) and (g) of
the Town and Country Planning Act 1990 as amended. Since an appeal has been
brought on ground (a), an application for planning permission is deemed to have been
made under section 177(5) of the Act. Appeal B is proceeding on the grounds set out in
section 174(2)(c), (f) and (g) of the Town and Country Planning Act 1990 as amended.
Summary of Decision: The appeals on grounds (b) and (c) fail. Appeal A succeeds
on ground (a) in so far as it relates to the new detached dwelling and planning
permission is granted under s177(5) of the 1990 Act accordingly, the enforcement
notice is upheld in respect of the partially built garage.
Preliminary matters
1. The appeal was to be dealt with by way of written representations. After the
site visit, the appeal procedure changed to a Hearing, where all the evidence
was discussed. I was not invited to conduct a further site visit and I am content
to proceed on this basis.
2. During the hearing it was agreed that the previously amended ‘as built’
drawing still exhibited errors. A further amended plan dated ‘May 2021’ was
submitted and that plan forms the basis of the ground (a) appeal pertaining to
the alleged erection of a new detached dwelling.
3. The appellants’ case includes that the ‘unauthorised demolition and erection of
a new detached dwelling’ has not occurred, this falls to be considered and so
there was an implied appeal on ground (b). Although this ground was not
selected on the appeal form, the parties agreed that there is significant overlap
between the ground (b) and (c) arguments. The appeal parties agreed that I
can evaluate both ground (b) and (c) together and this is how I shall proceed.
4. The appellants have provided a planning obligation dated 16 February 2021,
which surrenders the permitted development rights contained in Classes A, AA,
B, C and E (paragraph a) of Part 1, Schedule 2 to the Town and Country
Planning (General Permitted Development) (England) Order 2015 (as
amended) (“the GPDO”). The planning obligation is signed by the appellants
and on behalf of the mortgage company and is made out to the Council.
5. A revised version of the National Planning Policy Framework was published in
July 2021 (“the Revised Framework”). While the paragraph numbering within
chapter 13 Protection of Green Belt has changed, the wording within the
chapter has not. There is therefore no need for further comments from the
appeal parties on the Revised Framework and I shall proceed on this basis.
The notice
6. The Council request that the notice be varied to include the following additional
works that they claim have occurred since the notice was issued:
• Completion of the partially built structure to form a garage
• Siting of a storage container
• Removal of part of the front hedgerow and erection of a stone wall, piers
and gates, and
• Removal of the rear boundary hedgerow, change of use of agricultural land
to domestic garden and erection of a boundary wall.
7. S176(1)(a) makes provision for me to ‘correct any defect, error or
misdescription in the enforcement notice’. It was shown at the site visit that
the partially built structure had not been completed and that there was no
storage container on site. Regardless of whether the further matters raised by
the Council have occurred, varying the notice to include the matters set out
above would widen the scope of the allegation. While the powers under
s176(1)(a) are wide, they do not include adding additional matters to the scope
of the allegation as this would cause injustice to the appellant.
8. The allegation refers to ‘unauthorised demolition’ and, as not all demolition
represents development, it is necessary to clarify what has been demolished.
In this instance, it was a dwelling. Furthermore, there is no dispute that, if
completed, the ‘partially built structure’ would be a garage. The error has not
caused significant confusion because all the evidence points to the erection of a
partially built garage. This is how the parties have interpreted the notice.
9. Accordingly, having regard to all the material facts and evidence before me, I
find that the notice incorrectly describes the breach as including ‘unauthorised
demolition and erection of a … partially built structure’ when what has been
demolished was a dwelling and what has been partially built is a garage. In
addition, for precision, there is no need for the allegation to include the words
‘within the Green Belt’ as they are not relevant to the definition of development
as set out in s55(1) of the 1990 Act. No injustice would arise from my
correction of the notice.
10. For greater precision, the notice should describe the alleged breach of planning
control in the following way:
‘Without planning permission, the demolition of a dwelling and erection of a
new detached dwelling and partially built garage’.
11. I will determine the appeals on the basis of the corrected allegation as set out
in DL10 above.
Appeals A and B - grounds (b) and (c)
12. To succeed on these grounds the appellants should show, on the balance of
probability, that the demolition of a dwelling and erection of a new detached
dwelling and partially built garage has not in fact occurred, or if it has occurred,
that it does not represent a breach of planning control. The onus of proof rests
with the appellant and the relevant test is on the balance of probability.
13. It is clear from the evidence before me that building operations had taken place
resulting in the demolition of a dwelling and the erection of a new dwelling and
partially built garage. The building operations had taken place before the date
the notice was issued. The breach of planning control described in the
corrected allocation had therefore occurred.
14. In 2017 the appellant submitted a Prior Notification application (ref:
17/01978/DHH) for the erection of a large rear extension (“the 2017 PN”). The
Council confirmed by letter dated 27 April 2017 that prior approval for the
extension was not required. While the Council originally contended in their
‘Statement of Case’ that this development did not comply with the permitted
development limitations, they conceded, having regard to the plans that
accompanied application reference: P TA 1056, for the original bungalow, that
the large extension would have been permitted development.
15. The appellant also made a householder application (ref: 17/01967/FU) for a
‘single storey side extension, two single storey front extensions and alterations
to roof including dormer window to rear’ (“the 2017 PP”). This application was
granted planning permission on 19 June 2017. It is clear from the description
of development that the 2017 PP did not include the rear extension despite it
being shown on the approved plan.
16. The implementation of the 2017 PN required the demolition of a previous rear
extension and alterations to the existing rear elevation, which would become
an internal wall. The 2017 PP works required the demolition of the previous
side extension, the garage, parts of the front elevation and removal of the roof
to facilitate the hip to gable changes and other alterations to accommodate the
increased depth of the building and new dormer. In addition, fenestration
changes to the side (north) elevation were approved along with the extended
dwelling being faced in coursed stone. There is no dispute that the permitted
and approved works included a significant element of demolition, alteration and
rebuilding of the previously extended dwellinghouse. In addition to those
extensive approved works, Appellant A also confirmed that external walls that
should have remained standing were taken down and rebuilt.
17. The Council provided photographs taken at various stages during the building
works. Those dated 21 June 2017 show that only the front elevation of the
previously extended dwellinghouse remained standing at that time. It cannot
be confirmed from these photographs whether foundations for the demolished
elevations remained in situ. While the foundation trenches for the 2017 PN
extension can be seen, it is unclear whether its foundations had been laid
and/or whether its walls had been built up to damp proof course, as claimed by
the appellant.
18. Article 3(2) of the GPDO1 confirms that planning permission granted for the
permitted development described in Schedule 2 is subject to the exceptions,
limitations and conditions specified. Relevant to the 2017 PN, the condition set
out in class A.4(11)(b) states that ‘the development must be carried out … in
accordance with the information provided under sub-paragraph (2)’. The 2017
PN may have been begun by the digging of the foundation trenches, but by the
time the works had progressed above ground level, the rear and side walls of
the previously extended dwellinghouse had been demolished. The 2017 PN
could not have been completed in accordance with the information provided
under sub-paragraph (2) as the original rear wall of the dwelling to which it
was to be attached had been demolished. The large rear extension could not
therefore benefit from the planning permission granted under Article 3(1) of
the GPDO.
19. In respect of the 2017 PP, the grant of planning permission cannot be
purported to grant something outside the terms of the application, this does
not however mean that the grant must replicate precisely what has been
applied for. What needs to be considered is whether the development would be
so changed that it would in substance no longer be what was applied for. The
2017 PP clearly relates to extensions and alterations to the previously extended
dwellinghouse. The permission was also conditioned that the development had
to be carried out in accordance with the approved plans listed in the plans
schedule on the decision notice.
20. Approved plan no. 1751-7 identifies existing walls to be retained in white and
new external walls in black. The exterior walls to be retained were shown as
the rear wall, the side (north) wall, part of the front elevation and part of the
side (south) wall. The 21 June 2017 photographs show that the rear, south and
north walls had been demolished, which the appellants do not contest. While
the front elevation remained in situ at that date, the approved scheme required
a significant proportion of this wall to be demolished. Photographs dated
20 September 2017 show that the new front elevation and side elevations were
being constructed in coursed stone with new internal block walls.
21. The development may occupy a similar footprint and be of a similar appearance
to that which would have resulted from completing the combined extensions
and alterations granted by the 2017 PN and 2017 PP. However, I find that it is
more than probable having regard to the extent of the demolition works that,
rather than being extended and altered, the previously extended dwellinghouse
was demolished and a new detached dwelling erected in its place. For this
reason, the substance of the development was no longer what had been
applied for.
22. The partially built garage did not fall within the scope of the 2017 PN or 2017
PP. Works on the partially built garage did not commence until spring/summer
2020, well after the previously extended dwelling had been demolished and the
new detached dwelling had been substantially completed. While an argument
could be made that this partially built garage could be permitted development,
Article 3(5) states that permission granted in connection with an existing
building by Schedule 2 of the GPDO does not apply ‘if the building operations
1 Town and Country Planning (General Permitted Development)(England) Order 2015 (as amended)
involved in the construction of that building are unlawful’. As I have found that
a new detached dwelling was erected, those works are unlawful, and the
partially built garage cannot benefit from planning permission granted by
Article 3(1).
23. The development described in the corrected allegation has occurred as a
matter of fact and I have found that it does not fall within the scope of the
2017 PN and/or the 2017 PP. Express planning permission is required for the
demolition of a dwelling, the erection of a new detached dwelling and partially
built garage and it has not been obtained.
24. For these reasons, the implied appeals on grounds (b) and the appeals on
ground (c) must therefore fail.
Appeal A - ground (a) and the deemed planning application
25. Application reference: P TA 1056 was for the erection of a bungalow on the
site. The application plans, dated 29 March 1954, show the bungalow having a
roughly ‘L’ shaped footprint with a detached single garage located to the south
west of the dwelling (the 1954 PP). While the permission does not specifically
refer to the detached single garage, the Council confirmed that a later planning
permission referred to the ‘retention of the garage’. It is therefore reasonable
to assume that the garage shown on the plans submitted with the 1954 PP also
formed part of that planning permission. It was agreed that the bungalow and
single garage granted permission under the 1954 PP form the ’original
building’.
26. The original building had been the subject of side, rear and dormer extensions,
granted planning permission in 1979 (application reference: H33/1002/79).
The previously detached garage became an integral part of the dwelling
because of these works. This ‘previously extended dwelling’ is what formed the
subject of the subsequent development proposals and works set out in the
2017 PN and 2017 PP.
27. The development for which planning permission is being sought is the erection
of a new detached dwelling and a partially built garage.
28. There is no dispute that the site lies within the Green Belt. The main issues
are:
• Whether the development constitutes inappropriate development in the
Green Belt having regard to the Revised Framework and any relevant
development plan policies.
• The effect on the openness of the Green Belt.
• The effect of the development on the character and appearance of the area.
• If the development is inappropriate development inside the Green Belt,
whether the harm by reason of inappropriateness, and any other harm,
would be clearly outweighed by other considerations so as to amount to the
very special circumstances required to justify the development.
Whether inappropriate development
29. The Local Development Framework Core Strategy (2019) contains no relevant
Green Belt Policies. Saved policy N33 of the Leeds Unitary Development Plan
(Review 2006) does not fully accord with the Revised Framework as it does not
address the redevelopment of previously developed land. I attach limited
weight to policy N33.
30. The Revised Framework states that inappropriate development is harmful to
the Green Belt and should not be approved except in very special
circumstances. The construction of new buildings should be regarded as
inappropriate in the Green Belt, subject to the exceptions set out in paragraph
149. Clearly, exceptions (a), (b), (e) and (f) do not apply in this case because
the buildings are unrelated to agriculture or forestry, do not provide
appropriate facilities for outdoor sport or recreation, are not infilling in a village
and is not affordable housing for local community needs.
31. Paragraph 149(c) makes provision for the extension and alteration of a building
providing that it does not result in disproportionate additions over and above
the size of the original building. Paragraph 149(d) makes provision for the
replacement of a building provided the new building is in the same use and not
materially larger than the one it replaces. In this case the existing dwelling had
been demolished and a new dwelling and partially built garage constructed in
its place, prior to any replacement scheme having been considered and
approved. Therefore, I am not persuaded criterion (c) or (d) to paragraph 149
apply to the facts of this case.
32. Paragraph 149(g) makes provision for ‘limited infilling or the partial or
complete redevelopment of previously developed land, whether redundant or in
continuing use (excluding temporary buildings), which would … not have a
greater impact on the openness of the Green Belt than the existing
development’. Previously developed land is defined in the Revised Framework
as ‘Land which is or was occupied by a permanent structure, including the
curtilage of the developed land … and any associated fixed surface
infrastructure’. The site is not located within a built-up area and it does not fall
within the types of land excluded from the definition. The development would
fall within this exception, subject to it not having a greater impact on
openness.
Openness of the Green Belt
33. The fundamental aim of Green Belt policy is to prevent urban sprawl by
keeping land permanently open; the essential characteristics of Green Belt are
their openness and their permanence. In this instance the site has been
occupied by a dwelling and put to residential use for more than 50 years. As
such there is no conflict with the purposes of Green Belt.
34. In terms of the starting point for assessing the impact on openness, the
appellant contends that this should be the previously extended dwellinghouse
with the 2017 PN and 2017 PP works completed. The Council however contend
that as the previously extended dwellinghouse had been demolished, the
starting point should be a vacant site.
35. While the building operations undertaken include the erection of a new
detached dwellinghouse, immediately prior to its erection, the site was
occupied by the previously extended dwellinghouse. Furthermore, it was during
the course of carrying out development granted planning permission, that the
demolition works took ‘a step too far’. For this reason, I find the appropriate
starting point for assessing the impact on openness to be the built form of the
previously extended dwellinghouse.
36. There are similarities between the previously extended dwellinghouse and the
new detached dwelling in respect of their siting, eaves height and overall
design. The new dwelling is narrower in overall width but has a greater overall
depth and it is higher to the roof’s main ridge than the previously extended
dwellinghouse. There is also no dispute that the new detached dwelling has a
larger volume than the previously extended dwellinghouse. The partially built
garage also adds to the volume and mass of the whole development and
spreads the built development across the site.
37. When viewed from Swillington Lane the nominal increase in height of the new
detached dwelling is offset by the reduction in its overall width. The increase in
depth of the new dwelling results in it extending closer to the rear of the site,
which bounds onto open fields. Visually the new detached dwelling appears
more consolidated within the site, however there is no dispute that, spatially, it
is larger. In respect of the partially built garage, while this may have re-
introduced development into an area where development is said to have
previously existed, there is little information as to what that development
consisted of. The new detached dwellinghouse and partially built garage have
therefore resulted in a loss of openness.
38. The erection of the new detached dwelling and partially built garage has a
greater impact on openness and cannot fall within the exception set out in
paragraph 149(g) of the Revised Framework. The development is therefore
inappropriate development, which is by definition, harmful to the Green Belt.
Character and appearance
39. The site lies within an area of ribbon development in the countryside. There are
two storey dwellings to the north and south. The site is characterised as a
residential plot and has a domestic appearance, due to its location and position
within the ribbon and the length of time it has been occupied by a dwelling.
Mature trees and hedgerows have been maintained to the site frontage and
throughout the garden. Neighbouring plots accommodate large dwellings with a
range of attached and detached outbuildings.
40. The previously extended dwelling was constructed in red brick whereas the new
detached dwelling is constructed in coursed stone, but the use of stone on the
external elevations is acceptable because this type of material is found in the
street scene and wider locality. The new detached dwelling resembles the
external appearance of the former dwellinghouse, had it been extended and
altered in accordance with the 2017 PN and 2017 PP. While the partially built
garage represents an additional building in the countryside, the provision of
such an outbuilding is not uncommon within the immediate locality. The use of
natural building materials represents an improvement to the visual quality of
the development.
41. For these reasons, the development has no adverse effect on character and
appearance and does not conflict with saved policy GP5 of the Leeds Unitary
Development Plan Review (2006), which seeks, amongst other things, to
resolve detailed planning considerations, including landscape and design, and
avoid problems of environmental intrusion.
Other considerations
42. The following arguments are advanced as other considerations that might
weigh in favour of the development. It is clear, from the plans provided, that
the planning permissions granted by the 2017 PN and the 2017 PP provided for
a significant amount of the previously extended dwelling to be demolished.
Only 2 of the original external walls would have been retained and those would
have been subjected to fenestration changes. I do not doubt that a phased
approach to the implementation of the 2017 PN and 2017 PP could have been
feasible to ensure that the development undertaken fell within the scope of the
extensions and alterations approved. However, the 2017 PP did not require the
submission of a method statement detailing how the works would be carried
out. As such there was nothing to prevent the appellant beginning the
development in the manner that they did.
43. I acknowledge that the appellant was made aware of the Council’s concerns
that they had stepped beyond the approved works at a relatively early stage in
the building process. In highlighting that the works had gone too far to
represent extensions and alterations to the existing dwelling, I am however
unclear as to how the appellant could have lawfully rebuilt ‘the part demolished
bungalow’ and then gone on to complete the 2017 PN and 2017 PP works
without any form of further planning permission as suggested by the Council2.
Written expressions of support for the dwelling, were also given by the Council,
subject to the removal of permitted development rights. While I appreciate that
the Council’s intention may have been to resolve the situation in a timely
manner, in providing this advice, the severity of the situation in planning terms
was significantly undermined.
44. The works in respect of the partially built garage were undertaken in full
knowledge of the Council’s concerns relating to the effect of the development
on the openness of Green Belt. An argument has been made that, even taken
with the increased size of the new detached dwelling, the completed garage
would not be materially larger or disproportionate in size to the previously
extended dwelling had the 2017 PN and 2017 PP been fully implemented and
completed. However, I have already found that the new detached dwelling is
materially larger than the previously extended dwelling that was demolished
and the partially built garage adds further to the loss in openness.
45. The erection of the new detached dwelling represents a new chapter in the
site’s planning history. As such, the new detached dwelling is an ‘original
building’ and any future proposals to extend it, either by way of permitted
development rights or otherwise could be difficult to resist. While exemption
149(c)3 requires an assessment in respect of proportionality to be carried out,
such an assessment is not a consideration when exercising permitted
development rights as set out in the GPDO, which would affect openness.
46. The Revised Framework states that local planning authorities should consider
whether otherwise unacceptable development could be made acceptable
through the use of conditions or planning obligations. Planning conditions
should only be used where they are necessary, relevant to planning and to the
development to be permitted, enforceable, precise and reasonable in all other
2 Email from LCC dated 28 June 2017
3 National Planning Policy Framework July 2021
respects. Similarly, planning obligations must only be sought where they meet
all the following tests:
a) necessary to make the development acceptable in planning terms;
b) directly related to the development; and
c) fairly and reasonably related in scale and kind to the development.4
47. The removal of permitted development rights would mean that any future
extension proposals would require the benefit of planning permission. When
considering any such application for planning permission, the Council would
have regard to relevant planning policies and relevant material considerations.
The fact that the new detached dwelling is materially larger than the previously
extended dwelling that it replaced would be a consideration. The removal of
permitted development rights, through the imposition of a condition, is
necessary to make the development acceptable in planning terms. The Council
has suggested such a condition, which I will return to later.
48. The appellant’s planning obligation provides a further mechanism by which
control over future development proposals can be achieved to make the
development acceptable in planning terms. It is therefore necessary and
relates directly to and is fairly and reasonably related in scale and kind to the
development. The tests set out in paragraph 57 are met.
49. It was confirmed at the hearing that all the family’s finances are tied up in the
new detached dwelling, which represents a long-term investment to provide for
their and their son’s future. I heard that they had no other funding available to
secure alternative accommodation and the loss of this dwelling would render
the family homeless and in need of emergency housing provided by the local
authority. Furthermore, the stress associated with the length of time it has
taken for the matter to be progressed, coupled with the potential of losing the
family home has had a significant impact on the family. Consequently, the
education of the appellant’s son has suffered. The dismissal of the appeal could
result in a loss in employment, with the possibility of legal action being taken. I
only have Appellant B’s verbal submissions on these issues, but the Council did
not challenge the personal circumstances presented. I have no reason to take a
different approach, and the version of events is credible.
50. Given the nature of this appeal, the operation of Article 8 of the HRA5 is
engaged. The outcome of this appeal could result in the interference with rights
afforded under Article 8(1). I will also have regard to the best interests of the
appellants’ child, which align with the interests of the appellant.
51. Applying the Bingham Tests6, the dismissal of this appeal would be interference
by a public authority with the exercise of the appellant’s rights to respect for
private and family life and their home. Furthermore, this decision could lead to
the demolition of the family home, with little likelihood of securing planning
permission for a new home on the site given its Green Belt location, their
possible homelessness and other adverse effects on family life. This amounts to
interference with their Article 8 rights.
4 Paragraph 57 of the National Planning Policy Framework July 2021
5 Human Rights Act 1998
6 AZ v SSCLG & Gloucestershire DC [2012] EWHC 3660
52. Such interference may however be necessary as it relates to the regulation of
land use through the use of development control measures that are recognised
as an important function of Government. The application of Green Belt policy
would be in accordance with the law.
53. I have already found that the development does not conflict with the purposes
of including land in Green Belt. The use of the land has not changed and
planning permission was granted for a form of development that would have
resulted in a dwelling of similar scale and appearance to that which currently
exists on site. The unauthorised demolition of the previously extended dwelling
has reduced the likelihood of the redevelopment of the site meeting any of the
exceptions set out in paragraph 149 of the Revised Framework to such an
extent that planning permission for a further dwelling on the site, once the
requirements of the notice had been complied with, would be unlikely. This
would leave the appellant and his family homeless and with a potentially
undevelopable site. As such, I find the interference with the right to respect for
private and family life to be disproportionate in respect of the new detached
dwelling. The same cannot be said of the partially built garage, whose loss
would have a negligible effect on the appellant’s rights to respect for private
and family life and their home and the best interests of the child.
Green Belt balance
54. I have found the development to be harmful to the Green Belt by reason of
inappropriateness and loss of openness. I attach substantial weight to this
harm. That said, the development does not however conflict with the purposes
of Green Belt given the location of the site and its use not having changed. The
development does not have a materially harmful effect upon the character and
appearance of the locality. These factors neither way against or in favour.
55. The development could be made acceptable in planning terms subject to the
imposition of a suitably worded condition removing permitted development
rights. There is an executed planning obligation further securing the removal of
rights to extend or alter the dwelling without first obtaining planning
permission. To this factor, I attach great weight.
56. In addition, I attach considerable weight to the established use of the site,
which included a dwelling and garden. I attach significant weight to the
timescale that the site has been occupied by a dwelling and the new detached
dwelling is very similar to the development that would have occurred had the
planning permissions been implemented. The personal circumstances of the
appellant and his family carries significant weight. I also attach moderate
weight to the actions of the Council.
57. In my planning judgement, the advanced considerations in support of the
appeal, taken together and on balance, clearly outweigh the conflict with
planning policies designed to protect the Green Belt so as to justify the grant of
planning permission on the basis of very special circumstances. Consequently,
the very special circumstances necessary to justify the new detached dwelling
exist. A favourable outcome would not violate the appellant’s human rights and
would be in the best interests of the appellant’s son.
58. In contrast, the advanced considerations in support of the partially built
garage, do not, on balance, clearly outweigh the conflict with planning policies
designed to protect the Green Belt so as to justify the grant of planning
permission on the basis of very special circumstances. It is proportionate to
refuse planning permission in respect of the partially built garage, which is
plainly severable.
59. Therefore, subject to the imposition of conditions, I intend to grant planning
permission for the new detached dwelling but refuse planning permission for
the partially built garage.
Conditions
60. Given my findings above, I will focus on conditions relating to the new
detached dwelling. The Council provided a list of 17 suggested conditions if
planning permission were to be allowed. I received written submissions from
the appellant in respect of those conditions and further discussion took place at
the Hearing.
61. As the development has already taken place, I find conditions confirming the
approved plan and showing the relationship of the dwelling to the site
boundaries to be unnecessary. The need for a further red line plan is also
unnecessary in respect of the issues before me.
62. Conditions restricting the future use of permitted development rights may not
pass the test of reasonableness or necessity. However, given the site’s history,
there is good planning justification to control future alterations and extensions.
The new detached dwelling is larger and the increase in its depth results in it
extending closer to the rear of the site. Visually, the dwelling appears more
consolidated within the site. Extending and altering the dwelling under
permitted development rights has the potential to further erode the openness
of Green Belt. I consider that, in this case, it would be reasonable and
necessary to impose a condition restricting the enlargement, improvement or
other alteration of the dwelling without first obtaining planning permission.
Additionally, in the interest of residential amenity, no windows shall be inserted
in the side (north) gable wall facing the common boundary with Hollinthorpe
House without first obtaining planning permission.
63. Securing an approved landscape plan, which includes the reinstatement of the
section of frontage hedgerow, is justified in the interests of visual amenity. In
the interest of visual amenity, the removal of the partially built garage is
necessary.
64. While the specific details of the means of surface water disposal were not
provided in advance of the Hearing, it was confirmed that the system that
served the previously extended dwelling has been utilised and the Council
confirmed that they would be satisfied with written confirmation of what this
entails. As the development has already occurred, it is necessary to impose a
sanction to ensure these conditions are enforceable in the event of non-
compliance.
65. The site remains occupied by a single dwelling and there is no evidence to
suggest that harm has been caused to biodiversity or that the appellants have
suffered as a result of noise or contamination. The need for a Biodiversity
Enhancement and Management Plan, a Noise Assessment, the submission of
details of any contamination encountered during construction and
contamination test results for any soil or soil forming materials that were
brought on to site are disproportionate requirements given the use of the site
has not changed. It was also agreed that the implemented means of foul water
disposal was acceptable.
66. Sight lines and a parking/turning area are already provided in front of the new
detached dwelling and I saw that vehicles can enter and exit the site safely in
forward gear. I was not made aware that the provision of an electric vehicle
charging point is a policy requirement. The provision of a bin storage area
would not promote sustainable travel and as the erection of any further
buildings or structures could harm the openness of Green Belt, requiring the
provision of secure cycle parking would be inappropriate in this instance.
Conclusion on ground (a)
67. S177(1)(a) allows for the grant of planning permission in relation to the whole
or any part of the matters alleged in the notice. For the reasons given above,
suitably worded conditions can be imposed to make part of the matters
alleged, the erection of a new detached dwelling, acceptable in planning terms.
The appeal on ground (a) succeeds and planning permission is granted, in so
far as it relates to the new detached dwelling but refused for the partially built
garage – a split decision.
Overall conclusion
67. For the reasons given above I conclude that Appeal A shall succeed on ground
(a) in part only, and I will grant planning permission for the new detached
dwelling, but otherwise I shall uphold the notice and refuse to grant planning
permission for the partially built garage. The notice shall cease to have effect
insofar as it is inconsistent with the planning permission which I will grant by
virtue of s180 of the 1990 Act. As the appellants arguments on grounds (f) and
(g) relate to the new detached dwellinghouse, there is no need for them to be
considered.
Formal decisions
Appeal A: APP/N4720/C/20/3258467
68. It is directed that the enforcement notice is corrected by:
The deletion of the words “without planning permission, the unauthorised
demolition and erection of a new detached dwelling and partially built structure
within the Green Belt” and the substitution of the words “without planning
permission, the demolition of a dwelling and erection of a new detached
dwelling and partially built garage” in section 3: matters which appear to
constitute the breach of planning control.
69. Subject to the correction, Appeal A is allowed insofar as it relates to the new
detached dwelling located on land edged red on the plan and planning
permission is granted on the application deemed to have been made under
section 177(5) of the 1990 Act as amended, for the new detached dwelling at
Hollinholme, Swillington Lane, Swillington, Leeds LS26 8BZ, subject to the
conditions set out in the attached Schedule.
70. Appeal A is dismissed, and the enforcement notice is upheld as corrected
insofar as it relates to the partially built garage located on the land edged red
on the plan and planning permission is refused in respect of the partially built
garage at Hollinholme, Swillington Lane, Swillington, Leeds LS26 8BZ deemed
to have been made under section 177(5) of the 1990 Act as amended.
Appeal B: APP/N4720/C/20/3258468
71. Subject to the correction to the enforcement notice the appeal on grounds (b)
and (c) fail and the appeal on grounds (f) and (g) do not fall to be considered
as they relate only to the new detached dwelling. The enforcement notice is
upheld as corrected in the terms set out in paragraph 68 above.
M Madge
INSPECTOR
Schedule of Conditions
(a) The new detached dwelling hereby permitted shall be demolished to
ground level and all equipment and materials brought on to the land for
the purposes of facilitating its erection shall be removed within 30 days of
the date of failure to meet any one of the requirements set out in i. to vi.
below:
i. Within one month of the date of this decision a landscape plan
detailing all existing hard and soft landscaping along with any
mitigation/remedial works required by condition (a) ii, which
shall include details for the reinstatement of the section of
frontage hedgerow, as well as a written scheme of
implementation and management, shall be submitted to and
approved in writing by the local planning authority. Any
mitigation/remedial works shall be carried out in accordance
with a timetable detailed within the written scheme of
implementation, and thereafter maintained as agreed.
ii. Within 3 months of the date of this decision the partially
constructed garage and any associated hard landscaping shall
be demolished and removed, all demolition materials shall be
removed from the site and the land restored to its former
condition.
iii. Within one month of the date of this decision details of the
means of surface water disposal shall be submitted to and
approved in writing by the local planning authority. The details
shall include all necessary plans, documents and supporting
calculations. Should any remedial works be required as a result
of these details, they shall be carried out within one month of
the local planning authority’s written approval as required by
this condition, and the agreed details.
iv. If within 6 months of the date of this decision the local planning
authority refuse to approve the details required by (i), (ii)
and/or (iii) or fail to give a decision within the prescribed
period, an appeal shall have been made to, and accepted as
validly made by, the Secretary of State.
v. If an appeal is made in pursuance of (iv) above, that appeal
shall have been finally determined and the submitted details
shall have been approved by the Secretary of State.
vi. The details approved in respect of (i), (ii) and (iii) shall have
been carried out, completed and managed in accordance with
the approved timetable.
In the event of a legal challenge to this decision, or to a decision made
pursuant to the procedure set out in this condition, the operation of the
time limits specified in this condition will be suspended until that legal
challenge has been finally determined.
(b) Notwithstanding the provisions of the Town and Country Planning
(General Permitted Development)(England) Order 2015 (as amended),
(or any order revoking and re-enacting that Order, with or without
modifications), no enlargement, improvement or other alteration of the
dwelling shall be carried out and no building, enclosure or other structure
shall be erected on any part of the site without first obtaining planning
permission.
(c) Notwithstanding the provisions of the Town and Country Planning
(General Permitted Development)(England) Order 2015 (as amended),
(or any order revoking and re-enacting that Order, with or without
modifications), no windows shall be inserted in the side (north) gable wall
facing the common boundary with Hollinthorpe House without first
obtaining planning permission.
APPEARANCES
FOR THE APPELLANT:
Josh Kitson Director, Walker Morris LLP
BA (hons)
Paul Bedwell Senior Director, Pegasus Planning Group Ltd
MRTPI
Mark Fella
Joanne Fella
FOR THE LOCAL PLANNING AUTHORITY:
Jessica Thomas Principal Planning Officer, Leeds City Council
BA (hons), MA
Beverley Hocking Senior Compliance Officer, Leeds City Council
Magda Lezama Flood Risk Team, Leeds City Council