Appeal 6002699

The appeal is dismissed.

An application for costs was made by [name] and [name] against Dacorum Borough Council. This application is the subject of a separate Decision.

Schedule 2, Part 3, Class M(a) of the General Permitted Development Order (GPDO) provides that development consisting of a change of use of a building from (i) a use falling within one of the following (aa) laundrette; (bb) betting office; (cc) pay day loan shop; (dd) hot food takeaway; or (ii) a mixed use combining use as a dwellinghouse with a use falling within one of the uses mentioned in paragraph (i) (aa), (bb) or (cc) to a use falling within Class C3 (dwellinghouses) of Schedule 1 to the Use Classes Order, is permitted development subject to limitations set out in [name].1 and the conditions at [name].2 of the GPDO.

The Council considers that insufficient information has been submitted to determine whether the proposal would comply with the limitation set out at [name].1 (a) and that the proposal would not comply with the limitation set out at [name].1 (f) of the GPDO. Accordingly, the main issue is whether the proposal would be permitted development under Schedule 2, Part 3, Class M of the GPDO.

The submitted application form indicates that the building was not in use as a hot food takeaway (HFT) on 20th March 2013. However, the appellant has acknowledged that this was human error, which came to light when they observed the comments that the Parish Council made on the application during the application process. The Parish Council noted the error, stating that the unit was in use on 20th March 2013 as a HFT. Following this, and several weeks prior to determination, the appellant submitted evidence to the Council to demonstrate that the building was granted a change of use to a HFT in 1981.

From the evidence submitted I am satisfied that the unit was in use on 20th March 2013 as a HFT. The proposal therefore accords with criteria M.1 (a) (i) of Class M, Schedule 2, Part 3 of the GPDO.

[name].1 (f) also sets out that development is not permitted by Class M, if the development consists of demolition (other than partial demolition which is reasonably necessary to convert the building to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order).

The proposal seeks to demolish a small section of the existing single-storey rear extension to provide under-croft access to the rear of the property. This would allow future residents access to bin and cycle storage and vehicular access to a dedicated parking area. The appellant considers these works would be reasonably necessary to convert the building to C3 use, stating that on-site car parking is a requirement for residential development, drawing my attention to the Dacorum Parking Standards Supplementary Planning Document (SPD). I also acknowledge that the Highways Authority have not raised any objections to the proposal.

Whilst the appellant considers the works would be minor, this is not the requirement within the GPDO, but rather that any partial demolition must be reasonably necessary. I accept that parking would be a useful addition for the properties and that the SPD indicates this would normally be met on site. However, the SPD is not determinative. I consider that a C3 use could still be achieved without creating an underpass for vehicular use. For example, the development could be car-free. I observed on my visit that the appeal site is in an accessible location within Bovingdon high street, adjacent to a number of services and facilities, including public transport. In this regard, it is my judgement, that parking is not a necessary requirement to convert the building to a use falling within C3. I also note that car free development is something the SPD supports at paragraph 2.28. There is also nothing before me to indicate that alternative bin and cycle storage could not be achieved without partial demolition.

Consequently, I find that the demolition works would go beyond what is reasonably necessary to convert the building to C3 use and therefore the proposal would not be permitted development under Schedule 2, Part 3, Class M of the GPDO.

[name] have found the proposal would not be permitted development it has not been necessary for me to consider the prior approval matters under M.2 of the GPDO.

The appeal site lies within the zone of influence for the Chiltern Beechwoods Special Area of Conservation (“SAC”) which is a European designated site. In the event that I was minded to allow the appeal, Article 3(1) of the GPDO provides a pre-commencement condition which must be met where the development would affect a European protected habitat, such as a SAC, before the works can be lawfully begun as permitted development. This requires a separate application to the Council under Regulation 77 of the Habitats Regulations to allow the Council to undertake an appropriate assessment and, depending on the outcome, this would determine whether, in terms of that matter, the scheme could be undertaken as permitted development under the GPDO. However, the Regulation 77 application can be submitted and potentially approved after the grant of prior approval had I been minded to allow the appeal. For these reasons, and as I am dismissing the appeal for other reasons, there is no need for me to consider this matter further.

For the reasons above, I conclude that the appeal should be dismissed.