Appeal 3328518

The appeal is allowed and the planning permission Ref 231547, for proposed detached garage at [site address] , granted on 24 July 2023 by Herefordshire Council is varied by deleting conditions 1,4 and 5 and substituting for condition 3 the following condition.

The building hereby permitted shall be used solely for the garaging of private vehicles and purposes incidental to the enjoyment of the dwelling house.

The main issue is whether the disputed conditions are reasonable and necessary.

This condition seeks to ensure the implementation of the extant planning permission within three years from the determination of the application as a legislative requirement under Section 91 of the Town and Country Planning Act 1990.

Ordinarily, this condition is discharged through the implementation of the planning permission within the relevant timescale and rarely removed. Based on my observations and the submissions before me, the planning permission was implemented within the relevant time scale. As such, this condition is no longer necessary. Condition 3

Based on the description on the application form, the approved building is a garage. A garage by definition is intended to be used for the storage of vehicles. The appellant’s submissions also confirm that this building would be used as a garage for at least one car (a classic Mini) as well as other general domestic storage. This is consistent with the submitted Design and [name], which also suggested that the garage would be used as a workshop. Given the size of the garage, it is likely that this could accommodate a vehicle and allow space for a workshop and storage, incidental to the enjoyment of the dwelling house.

Given the overall scale of the garage and its proximity to a neighbouring property, I understand the concern of the Local Planning Authority (‘LPA’) that this could be used for a trade or business, to the detriment of the living conditions of neighbours. Even so, if the garage is used in such a manner, then the LPA have other powers to deal with this.

Nevertheless, the approved building was proposed, considered and determined as a garage for purposes incidental to the enjoyment of the dwelling house. As such, to define the permission and to ensure that the garage is used for its intended purpose, vehicle parking and purposes incidental to the enjoyment of the dwelling house, I have suggested an alternative condition 3. Condition 4

The LPA advise that condition 4 is necessary to ensure that the building remains available for the parking of vehicles and is not utilised as habitable accommodation without assessment of any associated impacts given the wider context of the site and scale of the garaging. This includes, the use of the approved building as habitable space, which the LPA asserts would result in the loss of parking spaces within the garage and potential increased parking requirements associated with additional occupation.

Notwithstanding the approved garage, the appellant advises that there is currently sufficient on-site parking and manoeuvring/turning space to enter and leave the site in a forward direction. I also observed this and have no evidence to the contrary to suggest that without the approved garage, the host dwelling would have insufficient on-site parking.

[name] note the LPAs concern about the use of the garage for habitable accommodation, such a proposal is not before me. As such, and in light of my proposed condition 3, I am not persuaded that condition 4 is necessary or reasonable. Condition 5

The National Planning Policy Framework says that planning conditions should not be used to restrict national permitted development rights unless there is clear justification to do so.

Disputed condition 5, removes permitted development rights under Class E of the GPDO for: the provision within the curtilage of the dwellinghouse of (a)any building or enclosure, swimming or other pool required for a purpose incidental to the enjoyment of the dwellinghouse as such, or the maintenance, improvement or other alteration of such a building or enclosure; or (b) a container used for domestic heating purposes for the storage of oil or liquid petroleum gas.

Although the approved garage occupies a sizeable footprint, this is largely located to the side of the host dwelling. Because of this arrangement and despite incorporating a number of smaller buildings and structures, the host dwelling retains a large rear garden. This garden area is also set back from the highway and is in part screened by boundary treatments.

Moreover, the host dwelling benefits from a more generous plot relative to neighbouring properties and forms part of an established residential area, where buildings in rear gardens are not uncommon.

Furthermore, permitted development rights under Class E of the GPDO are subject to certain limitations and conditions, which control the scale and extent of such development.

Drawing on the above reasons, I am not persuaded that the appeal site is particularly vulnerable to overdevelopment or that by utilising permitted development rights under Class E of the GPDO, this would result in any unacceptable harm to the character of the plot and amenity of the wider residential context. As such, condition 5 is not reasonable, necessary or justified.

Following the granting of the extant planning permission, Natural England have advised the LPA of increased [name], which includes the appeal site. [name] have been provided limited information on this matter, the LPA assert that because the garage includes a toilet any change to the use that would increase water flows (such as conversion to habitable space rather than ancillary garaging to the host dwelling and existing occupants) would require the undertaking of Habitat Regulations Assessment (‘HRA’) by the competent body.

However, the proposal is not for a change of use. In fact, the proposal is for a domestic extension (incorporating a toilet) to an existing dwelling. Therefore, on this basis, I have no reason to conclude that a HRA is necessary for the proposal before me.

For the reasons given above, I conclude that the appeal should succeed. I will delete disputed conditions 1, 4 and 5 and substitute condition 3 for an alternative condition 3.