Planning Enforcement in Wales Unauthorised buildings in the countryside & impact on protected species Case 1

Transcription

1 Planning Enforcement in Wales Unauthorised buildings in the countryside & impact on protected species Case 1 Jonathan Parsons Development Control Team Leader 1

2 Background Unauthorised structure Site located outside settlement in rural area Landscape conservation area (UDP) Previously used for agriculture, now domestic dwelling Very isolated & not easily viewable but close to PROW Development discovered by officer following enquiry regarding adjacent piece of land 2

3 Location 2005 aerial photograph 3

4 Location 2009 Aerial Photograph 4

5 Site Inspection 1 View from access drive 5

6 Site Inspection 2 Front Elevation 6

7 Site Inspection 3 Rear Elevation 7

8 Site Inspection 4 Evidence of excavation works 8

9 Site Inspection 5 View from public right of way 9

10 The building Garage area with 2 post lift Gymnasium Sauna Shower room Mezzanine area with audio visual equipment 2 additional rooms in roof space Covered veranda Plastered internally Central heating & power 10

11 Unauthorised Development? Not considered part of curtilage therefore no permitted development rights Even if considered to be curtilage building then height allowance exceeded 11

12 Is the development acceptable? Development in the countryside without justification Design not acceptable industrial appearance out of character with rural surroundings Easily capable of being used as an independent dwelling Tantamount to a new dwelling in the countryside Incapable of adaption to make it acceptable Development considered unacceptable and contrary to development plan ENFORCE! 12

13 PCN & Land Registry Check PCN response claimed that building was in use as a garage The householder claimed ownership of the site Land Registry check revealed that part of the planning unit owned by Welsh Government! Building outside disputed area so able to modify enforcement notice plan to exclude WG land Further site visit to establish dimensions, uses etc 13

14 Enforcement Notice Required complete removal of the building and resulting materials from the land Time for compliance 6 months Prejudicial to character and visual amenity The EN made presumption that building outside the residential curtilage Unable to modify the building to make it acceptable 14

15 Bats! The presence of bats brought to the attention of the LPA when officer served EN through general conversation Present in both unauthorised building and main dwelling LPA mindful of NERC Act, S40 biodiversity duty Decided to undertake bat survey cost

16 Bats 2 Survey found evidence of bats In the unauthorised building however Main roost in dwelling Potential for mitigation Licence from WG required for any works that affect EPS How does this affect enforcement notice? 16

17 Bats 3 Enforcement notice served and appeal under S174 lodged Considered serving amended notice to include mitigation measures for protected species In view of the appeal it was decided to leave the decision up to the Inspector! Protected species issue referred to in appeal statement 17

18 Appeal Written representation procedure Appeal on ground A (deemed application) Ground F (requirements of notice too onerous) As the building is not considered to be within the curtilage the fee for Ground A based on floor area = 1650 (to both LAP and PI) 18

19 Appeal 2 Appellant claimed that building is subservient to main dwelling and that design in keeping with rural vernacular Claimed that it was constructed within curtilage and requested refund of fee Submitted drawings of a smaller building for consideration Did not refer to protected species issue 19

20 Appeal 3 Inspector disagreed, dismissed the appeal subject to longer compliance period in view of the need to obtain a license from WG. Applied 3 tests in The Conservation of Habitats and Species Regulations 2010: Imperative reason of overriding public interest; Must consider if there is no satisfactory alternative; The action will not be detrimental to population of the species concerned (at a favourable conservation status within its natural range). 20

21 Appeal 4 The Inspector considered the harm of the building in terms of its impact on the character and appearance of the area represented an imperative reason of overriding public interest There was no satisfactory alternative to the notice and; there were potential mitigation measures available that would minimise the impact of the works on the protected species. The Inspector s decision DID NOT prejudice the more detailed assessment that would be undertaken by the Ministers in response to a licence application. 21

22 Lessons Learned? Not to be afraid to tackle protected species issues as part of enforcement, however: Have regard to the relevant Regs Essential as with all enforcement issues to have the right evidence i.e. surveys (notwithstanding potential cost implications) Useful to have necessary training in protected species to identify potential. 22

23 Planning Enforcement in Wales Unauthorised buildings in the countryside & impact on protected species Case 2 Osian Roberts Planning Enforcement Officer 23

24 Background Original complaint from Member relating to substantial development Further information received from the Welsh Government who were involved in a project on the site. Original site visit undertaken at the beginning of September 2009, but several further visits made PCN served to establish the extent of works. 24

25 The Breach! Planning permission given in 2005 for works to farmhouse. Initially there didn t appear to be a breach. Investigation confirmed planning permission required for: Barn Conversion (Residential Use) Ponds Shed to rear of property Hydroponics Shed Pigsty Dovecote Investigation confirmed that Building Control had been involved in the conversion of the barn. Break down in communication. 25

26 Barn Conversion 26

27 Dovecote 27

28 Other works 28

29 Planning Applications / Policy Context Planning applications were submitted quickly for the Dove Cot and other structures. Planning application for barn conversion eventually received in February Site located outside settlement in rural area. Landscape conservation area (UDP). Previously used for agriculture, now domestic dwelling. Very isolated 29

30 The Building Ground Floor Kitchen/Breakfast room 2x Bedrooms Utility room WC and Shower Store First Floor Lounge En-Suite Bedroom 30

31 Planning Application Two applications were submitted Retention as built (150% increase on the original building) Retention with alteration to height. Both included the change of use to holiday accommodation. PP Refused Unacceptable sporadic development prejudicial to the character of the area. No habitat Survey Sub-Standard Access 31

32 Enforcement Notice Notice Served April 2010 Required complete removal of the extension and resulting materials from the land Time for compliance 6 months Prejudicial to character and visual amenity, and highway safety. Nothing relating to protected species. 32

33 Appeal Appeals submitted as follows: S78 for the application to amend the height of the extension. S174 against the EN; as such dealing with the building as it stood. In terms of the S174 appeal Ground A and F were appealed. Appellant argued that the development was generally in accord with the UDP and there was no demonstrable harm. They also confirmed that there was no evidence of protected species. 33

34 Appeal Decision S78 Dismissed S174 Notice upheld time for compliance amended to 12 months (despite not appealing ground G). Apart from the external stairway, the form, bulk, design and fenestration of the addition is incompatible with the intrinsic rural character of the simple and traditional barn from which it has arisen. Furthermore, the building is in a prominent hillside location where its dominating presence seriously harms the rural character of the area. Also identified that the structure appeared to be generally sound before conversion. No Highway issue. 34

35 In the mean time. Further two applications were submitted. The first refused on visual grounds. The second approved. The first was appealed and subsequently dismissed, again on visual grounds 35

36 Compliance with E.N. Time for compliance ended 2nd November 2011 Site visited 7th of November 2011 no change and indications of use for residential purposes. Legal action instigated. Heard at Magistrates Court on 2 April 2012: Owners pleaded guilty to non compliance with E.N. Fined 650 for the offence, 15 surcharge and 150 costs each. Total fines Owners advised to undertake works immediately. 36

37 Further Developments. We were advised in early May that there were indications of bats in the building delaying tactic or genuine concern?! Legal opinion sought on further action No further action in respect of demolition at present Pursue the use for residential purposes. Survey indicated possible presence of bats and clear indication of nesting birds. Work should not begin until the season had ended i.e. September. 37

38 Demolition works 38

39 Demolition works 39

40 Lessons Learned? Closer working with Building Control. Not being afraid of pursuing prosecutions noncompliance with Notices in Court. Be more forceful with regard to the unauthorised use. Ensure that all matters, inc. protected species, are covered early on to avoid delays in compliance. Could the LPA have taken direct action?! 40

41 Thank You 41