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Appeal Decisions Appeal Decisions Inquiry held on 12 and 13 January 2012 Site visit made on 13 January 2012 by Mr Keri Williams BA MA MRTPI an Inspector appointed by the Secretary of State for Communities and Local Government Decision date: 8 February 2012 Appeal A: APP/J1535/C/11/2157738 The building known as the Summerhouse at Barkers Farm, Mount End Road, Theydon Mount, Epping, Essex, CM16 7PS • The appeal is made under section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991. • The appeal is made by Mr Leonard Barker against an enforcement notice issued by Epping Forest District Council. • The Council's reference is ENF/0549/10. • The notice was issued on 6 July 2011. • The breach of planning control as alleged in the notice is the material change of use of the Summerhouse for residential purposes and the creation of a domestic garden curtilage around the Summerhouse. • The requirements of the notice are to: a) Cease the residential use of the Summerhouse; b) Remove all residential fixtures, fittings and associated paraphernalia from the Summerhouse; c) Remove the garden area created around the Summerhouse and remove all the domestic paraphernalia from the garden area including the patio, washing line and hot tub. • The period for compliance with the requirements is 3 months. • The appeal is proceeding on the grounds set out in section 174(2) (c) and (d) of the Town and Country Planning Act 1990 as amended. Since the prescribed fees have not been paid within the specified period, the application for planning permission deemed to have been made under section 177(5) of the Act as amended does not fall to be considered. Summary of Decision: The enforcement notice is found to be invalid and is quashed. Appeal B: APP/J1535/C/11/2157758 Part of the former dairy building at Barkers Farm, Mount End Road, Theydon Mount, Epping, Essex, CM16 7PS • The appeal is made under section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991. • The appeal is made by Mr Leonard Barker against an enforcement notice issued by Epping Forest District Council. • The Council's reference is ENF/0062/11. • The notice was issued on 6 July 2011. • The breach of planning control as alleged in the notice is the material change of use of part of the dairy building from B1 Office Use to residential use as a dwelling. • The requirements of the notice are to: a) Cease the use of dairy building for residential purposes; b) Remove the staircase to the attic space and reinstate the ceiling where the staircase enters the attic; www.planningportal.gov.uk/planninginspectorate Appeal Decisions APP/J1535/C/11/2157738, APP/J1535/C/11/2157758, APP/J1535/X/11/2152045 c) Remove the shower and wash basin from the attic; d) Remove all residential paraphernalia from the dairy building. • The period for compliance with the requirements is 6 months. • The appeal is proceeding on the grounds set out in section 174(2) (c) and (d) of the Town and Country Planning Act 1990 as amended. Since the prescribed fees have not been paid within the specified period, the application for planning permission deemed to have been made under section 177(5) of the Act as amended does not fall to be considered. Summary of Decision: The enforcement notice is found to be invalid and is quashed. Appeal C: APP/J1535/X/11/2152045 Barkers Farm, Mount End Road, Theydon Mount, Epping, Essex, CM16 7PS • The appeal is made under section 195 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991 against a failure to give notice within the prescribed period of a decision on an application for a certificate of lawful use or development (LDC). • The appeal is made by Mr Leonard Barker against Epping Forest District Council. • The application, Ref.EPF/2311/2009, was dated 26 November 2009. • The application was made under section 191(1)(a) of the Town and Country Planning Act 1990 as amended. • The use for which a certificate of lawful use or development is sought is described as residential use. Summary of Decision: The appeal is dismissed. Preliminary Matters 1. Oral evidence at the Inquiry was given on oath or solemn affirmation. These appeals concern two separate buildings within the wider area of Barkers Farm. The full extent of Barkers Farm is shown on the plans attached to the enforcement notices. The buildings are referred to in the notices as part of the Dairy Building and the Summerhouse and I shall refer to them as such. 2. Conflicting evidence was given at the Inquiry regarding the plans for the Lawful Development Certificate application. The Council has provided the plans which it says formed the application plans after amendments were made to the plans initially submitted. It says that these changes were agreed with the appellant, Mr Barker. The plans include a 1/1250 scale site plan showing part of the Dairy Building outlined in red. Drawing 08-189/01 shows the ground floor layout and 08-189/02 shows the first floor layout. Both these plans also show part of the building outlined in red. The ground floor plan includes a small area of land to the north of the building within the red line. Drawing 08-189/03 gives elevations of the building, with part of the building marked “Domestic Conversion”. A series of other plans, which are marked “Superseded” were also submitted by the Council. Mr Barker contends that amendments were made to the submitted plans without his agreement. They include the deletion of a door from the first floor landing to bedroom 2 and the removal of annotations referring to an entrance and giving a floorspace figure. 3. It is not unusual for amendments to be made to plans following their initial submission. A letter to the appellant from Mr Solon, the Council’s Principal Planning Officer, of 21 July 2010, refers to additional information and plans being required. At the Inquiry, Mr Solon gave evidence on solemn affirmation. www.planningportal.gov.uk/planninginspectorate 2 Appeal Decisions APP/J1535/C/11/2157738, APP/J1535/C/11/2157758, APP/J1535/X/11/2152045 He explained in some detail how he had inspected the building and found no door from the landing as marked on the plans submitted with the LDC application. He referred to his subsequent meeting with the appellant where he says the changes which needed to be made were agreed. I find Mr Solon’s explanation to be credible. The existence of a series of plans marked “Superseded” is consistent with this account. 4. During the Inquiry it emerged that Mr Barker had taken deliberate steps to conceal the extent and nature of the residential accommodation in part of the Dairy Building. It seems to me that his partner, Ms Germaney, must also have been aware of and party to those steps. Although Mr Barker contends that his actions were not for purposes of deception, nothing is submitted which convinces me of any other explanation. During the Inquiry, I also found Mr Barker to be vague and evasive at times when responding to questions. These matters reduce the weight I can attach to his evidence and that of Ms Germaney in these appeals. I accept the Council’s evidence with regard to the relevant plans. Appeals A and B: The Validity of the Enforcement Notices 5. At the Inquiry matters were raised which could affect the validity of the enforcement notices. Each notice alleges a material change of use. With regard to part of the Dairy Building, a change from BI office use to residential use as a dwelling is alleged. The Summerhouse notice refers to use for residential purposes and the creation of a domestic garden curtilage. 6. Section 171B(2) provides that “where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.” An important characteristic of a use as a single dwellinghouse is that the dwellinghouse should be self-contained. I do not consider that requirement to be met in this case. There is a lockable door in a garage undercroft area which gives access to the ground floor residential accommodation. However, the appellant’s evidence suggests that frequent and regular use has been made of another entrance to the residential accommodation. It is through a door into the southern part of the building. That part of the building consists of office accommodation, a use for which planning permission was granted in 2004. It is outside the enforcement notice area. A staircase then gives access, via a door which is not fitted with a lock, into the first floor residential accommodation. The staircase would also give convenient access to the ground floor toilet facilities, which are in the rear part of the office area. 7. In addition to this, I take into account the manner in which the Summerhouse has been used in conjunction with accommodation in part of the Dairy Building. The Summerhouse provides spacious and extensive accommodation of a residential character at both ground and first floor levels and is fitted out in a manner similar to a dwelling. Indeed, the Inspector who determined an appeal concerning the building in 2010 (APP/J1535/A/09/2111308) commented that: “Inside there is what appears to be residential accommodation, including a fitted kitchen, lounge, bathroom, dining and study area, and in what seems to be a new first floor, there is a large bedroom, complete with bed.
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