Appeal 3341530

The appeal is allowed and planning permission Ref 23/00811/FUL for basement conversion to form one bedroom apartment at [site address] granted on 4 January 2024 by Calderdale Metropolitan Borough Council, is varied by deleting condition 2.

An application for costs has been made by the Council against the appellant, [name]. This is subject to a separate decision.

At the time of my site visit, the conversion works were complete and the apartment appeared to be occupied. Also, an external porch had been built, which encloses the area in front of the main entrance door and front lounge window of the new basement apartment.

Planning permission has been granted, subject to conditions, for the conversion of the basement of the host property to a one bedroom apartment.

The condition in dispute relates to the addition of a new entrance porch to the appeal property. The condition sought to prevent further works from being carried out, or the first occupation of the proposed new apartment, until the entrance porch that was being constructed at the time of the consideration of the planning application, was demolished and removed in its entirety from the site, and that the host building was subsequently reverted back to its previous condition before the porch works commenced.

While the appellant seeks the removal of the condition because they consider the porch is acceptable in terms of its design and appearance and could be screened from view, it is necessary for me to consider whether the condition meets the relevant tests for conditions, as set out in paragraph 56 of the National Planning Policy Framework (the Framework).

Having regard to the above, the main issue in this appeal is whether the condition is valid and if it is, whether it meets the ‘six tests’ found in the National Planning Policy Framework (the Framework) and the Planning Practice Guidance (PPG).

In order to be valid a condition must fulfil a planning purpose, fairly and reasonably relate to the development being permitted and not be so unreasonable that no reasonable authority could have imposed them, which is ‘Wednesbury’ unreasonable1.

The appeal proposal, as referred to in the description of development, relates to the conversion of the basement to a one bedroom apartment and does not include the erection of a porch to the host building. Also, the approved plans for the development2 do not include details of a porch to the exterior of the building. The only external alterations shown on the approved plans include the addition of a new window to serve the lounge of the apartment. Therefore, planning permission was not sought for, nor was consent granted for a porch at the appeal property.

Furthermore, condition 1 of the permission expressly requires the development to be carried out in full accordance with the approved plans detailed in the decision notice. Thereby, irrelevant of when the porch was constructed, as it did not form part of the appeal proposal the condition to remove it was not a valid condition, as it did not fairly and reasonably relate to the development being permitted.

Even though the Council discussed the alleged unauthorised porch and imposition of a condition to remove it with the appellant’s agent in advance of determining the planning application, a condition should not be imposed to seek to remedy a pre-existing problem that does not form part of an application proposal. Thereby, such does not justify a condition which is not valid.

In view of the above, as I find that the condition is not valid in terms of the legal tests, it is not necessary for me to go on to consider whether the 1 [name] v [name] [1948] (Court of Appeal) 2 Planning permission ref 23/00811/FUL includes Plan ref: 2048-23-002 [name] (Location & Block Plan), dated July 2023 and received by the Local Planning Authority on 03/01/2024; Plan ref: 2048-23-001 [name] (Existing and [name] & Elevations), dated July 2023 and received by the Local Planning Authority on 19/12/2023. condition would meet the six tests set out in the Framework and PPG in this instance.

The appellant has sought advice on whether or not the porch extension would be classed as permitted development3. However, this is not a matter which falls to be considered in this appeal.

That there may or may not have been agreement between the appellant’s agent and the Council about the wording of the condition is not of relevance to the main issue in this appeal. Notwithstanding such, the condition in dispute is not a pre-commencement condition and so there was no requirement for the Council to gain the appellant’s written agreement to the terms of the condition 4 in any case.

For the reasons given above, I conclude that the appeal should succeed and I vary the planning permission by deleting the disputed condition.