Appeal 3305887

The appeal is allowed and the planning permission Ref 21/04777/RET for an outbuilding at [site address] granted on 27 May 2022 by Dacorum Borough Council, is varied by deleting condition 4.

Planning permission was granted for the erection of an outbuilding at the appeal site which included a condition removing permitted development rights for the erection of outbuildings under Class E of the Town and Country Planning (General Permitted Development) Order 2015 (as amended) (the GPDO). The Council considers the condition is necessary to protect the Green Belt. The appellant objects to the condition as they consider that exceptional circumstances have not been demonstrated to justify the condition.

The main issue is therefore whether the condition is reasonable or necessary in the interests of protecting the Green Belt.

The appeal site comprises a semi-detached dwelling in a predominantly residential area. The dwellings in the vicinity of the site on this side of [address] have long rear gardens which slope down towards the adjoining open countryside. The existing outbuilding is sited on lower ground at the far end of the garden close to the rear boundary of the site on land which is located within the Metropolitan Green Belt. Condition 4 removes permitted development rights for the erection of ancillary buildings from the appeal site in its entirety.

Schedule 2, Part 1 of the GPDO sets out the permitted development rights for development within the curtilage of a dwellinghouse. Whilst there are specific exceptions for some classes where permitted development rights do not apply, the GPDO does not withdraw permitted development rights for land within the Green Belt. It can therefore be surmised that land within the Green Belt is regarded by the Government as being no different in terms of the application of permitted development rights to land outside of it. Moreover, the fact that permitted development rights have not been removed from land in the Green Belt suggests that the Government’s fundamental Green Belt aim of preventing urban sprawl by keeping land permanently open does not extend to preventing permitted development within a domestic curtilage.

The National Planning Policy Framework (the Framework) sets out that planning conditions should not be used to restrict national permitted development rights unless there is clear justification for doing so. The Planning Practice Guidance (PPG) also advises that conditions of this nature will rarely pass the test of necessity and should only be used in exceptional circumstances. Therefore, the starting point is that permitted development rights should remain in place, even in the Green Belt, unless clear justification for their removal is advanced which is specific to the site.

The Council indicate that planning permission was granted for the outbuilding having regard to the fallback position of permitted development rights which meant that the building could have been built in a very similar position without planning permission and that the impact of such a building, when compared to the appeal proposal would be indiscernible. Moreover, it was considered that the erection of an outbuilding which would constitute permitted development, elsewhere on the site on higher land closer to the dwelling and beyond the Green Belt, would potentially have a greater effect, including in terms of visual impact and living conditions.

The permitted development fallback position combined with the removal of permitted development rights for subsequent outbuildings, in order that the Council could gain control over future development to ensure that the openness of the Green Belt is not diminished further, were considered to amount to very special circumstances. The Council suggest that without the condition to remove permitted development rights, the very special circumstances required to clearly outweigh the harm to the Green Belt by reason of inappropriateness would not have been demonstrated. On that basis the condition to remove permitted development rights for Class E buildings was deemed reasonable and necessary.

Given the site topography no significant harm to the openness of the Green Belt was identified by the Council as a consequence of the siting of the outbuilding. [name] note concerns that a building on land closer to the house may have a greater impact on openness due to its more elevated position, the appeal submissions indicate that this land falls outside of the Green Belt.

Having regard to the limitations of Class E of the GPDO in terms of the dimensions and position of permitted development, I am not persuaded that the erection of further ancillary buildings at the site would have such an effect on the openness of the Green Belt or its purposes that removal of permitted development rights is justified. Furthermore, I find that the permitted development fallback position itself would provide very special circumstances which clearly outweigh the harm to the Green Belt by reason of inappropriateness to justify the granting of planning permission for the outbuilding.

For the above reasons, it has not been shown that there is clear justification for the removal of permitted development rights under Class E as set out in the Framework and the PPG. I therefore conclude that condition 4 is not reasonable or necessary in the interests of protecting the Green Belt. As such, removal of the condition would not be contrary to the Green Belt aims of Policy CS5 of the Dacorum Borough Core Strategy (2013) which sets out that the Council will apply national Green Belt policy to protect the openness and character of the Green Belt and Section 13 of the Framework in relation to the protection of the Green Belt.

Interested parties have raised a number of concerns relating to the outbuilding for which planning permission has been granted. However, as these do not specifically relate to the removal of the condition which is in dispute, they are not relevant to the determination of the appeal before me.

In light of the above, I conclude that the appeal should be allowed, and planning permission Ref 21/04777/RET varied by the deletion of Condition 4.