Smart Planning have successfully won an appeal against Rochford District Council (the Local Planning Authority or LPA) for the imposition of an erroneous condition attached to a planning permission.

The initial retrospective planning permission was granted in January 2019 for the retention of a replacement building for use as overnight accommodation, located on Green Belt land between Rayleigh and Eastwood in Essex. However, the LPA in issuing their Decision Notice attached a single condition which stated “The building hereby permitted shall only be used for leisure use and not for use as a separate dwelling“.

It was clear that the intention of the LPA was to limit the occupation of the overnight accommodation. However, a ‘leisure use’ falls within use class D2 Assembly and Leisure, whilst overnight accommodation is a type of residential use which would be categorised as use class C3.

In making his decision, Planning Inspector Mr G Chamberlain said that it was “inaccurate of the Council to suggest there is no ‘proof’ the building was used as a dwelling” and that “there is no contradictory evidence” to suggest otherwise. Mr Chamberlain also clarified that “the structure was probably a lawful dwelling in 1997” meaning that the historic use of the building was for residential purposes and not that of leisure.

In concluding, the Inspector states that “there is no need to prevent permanent occupation of the dwelling, the living conditions of which would not be worse than what proceeded it.

Condition 1 of the initial planning permission was therefore successfully removed.

Furthermore, the Inspector also allowed a full award of costs to our client. Mr Chamberlain stated that “it [the LPA] erroneously concluded that the use of the building was a leisure use rather than a continuation of its use as a dwelling” and consequently “this flawed approach resulted in the Council imposing an unnecessary condition“.

He concludes that “the appellant has been put to the unnecessary and wasted expense of submitting an appeal to remove a condition that should not have been imposed. I therefore find that unreasonable behaviour …and that a full award of costs is justified“.

Appeal decision reference: APP/B1550/W/19/3233231

16 October 2019