David Will
.
Property Consultant
The Willows, Happisburgh Common, Norwich, NR12 0RT
Telephone: 01692 652266 Email: david@davidwill.co.uk
Website: www.davidwill.co.uk
In support of a planning application to change the use of Sandshell, Church
Lane, Bush Estate, Eccles on Sea, NR12 0SY
Mr and Mrs Crisp purchased the property now known as Sandshell around fifty years
ago when it was known as “Murex” in existence as a “residence” before 1948. They
bought it to use as a second home which use has continued until the present time.
On 23rd January 1972 Norfolk County Council permitted the erection of a holiday
bungalow by reference SM10495 and “Murex” was demolished and “Sandshell” was
built. The bungalow was built to a full residential specification in line with Mr and Mrs
Crisp’s intention to use it as a second home. Mr and Mrs Crisp have used “Sandshell”
at all times as a second home, it has never been used as holiday accommodation nor
has it been let to anyone at any time for holiday accommodation or any other purpose.
SM10495 requires “the proposed dwelling shall be used for habitation purposes only
during the period from 29th March to 31st October and for any three weeks including
Christmas Day in each year and at all times will be used only for the storage of
household effects”. There was no condition that the bungalow shall be used as or for
holiday accommodation.
On 20th July 2012, by application number PF/12/0511 North Norfolk District Council
permitted the variation of condition of planning permission reference SM10495 to
permit all year holiday accommodation but this permission has not been implemented
as Mr & Mrs Crisp have continued to use Sandshell as a second home and not as
holiday accommodation.
Since the erection of Sandshell in 1973 Mr and Mrs Crisp have not complied with
Condition 2 of planning reference SM10495 in that they have used Sandshell as a
second home for 365 days in each year. This practise has continued to date since
granting of the planning permission PF/12/0511 in contravention of Condition 1 “The
property subject to this permission shall be used for holiday accommodation purposes
only and shall not be used as the sole or main residence of the occupiers”.
PF/12/0511 is a variation of SM10495 and since Mr and Mrs Crisp have occupied the
property as a second home for a period in excess of ten years (49 years) in
contravention of both conditions they are immune from enforcement action.
This application seeks to regularise the planning permission SM10495 for Sandshell
by an application to permit permanent residential occupation without the necessity of
Surveyor and Land Agent
Planning and Development Surveyor
Independent Valuer
an application for a Certificate of Lawful Use or Development, followed by an
application for planning permission to use the property for permanent residential
occupation.
Planning Statement
Paragraph 15 of Circular 11/95 says that in dealing with applications for the removal of
a condition under s73 or 73A, a condition should not be retained unless there are
sound and clear cut reasons for doing so. In this case the condition fails the tests of
necessity, enforceability, precision and reasonableness. Concerning necessity, the
Local Planning Authority classifies the location as “Countryside”, considers that the site
lies outside any development boundary and in a location where new dwellings would
not normally be acceptable. Policies in the Development Plan permit holiday
accommodation in such circumstances and the disputed condition is necessary to
ensure the unit remains available for that use. This not a new dwelling.
The community of Bush Estate, Eccles on Sea can hardly be classified as anything
other than a substantial residential settlement. Today the majority of the area of Eccles
on Sea is occupied by the Bush Estate which is a collection of about 230 mostly prewar bungalows tucked in behind the sand dunes. The Bush Estate was originally a
simple holiday retreat, with just one well between the inhabitants and no mains
drainage or power but that was in the early 1950’s and since that time all mains
services have been provided to the dwellings and the properties have been improved
as the utility companies laid on mains drainage, electricity and telephones and the
community has become more permanent than holiday new residents taking advantage
of low property prices. Today, if council tax records are correct, around 163 of 230
dwellings are occupied on a permanent residential basis and many of the dwellings
have been rebuilt in traditional brick and tile as conventional bungalows with all the
requirements of permanent residential occupation.
As the change from holiday to permanent residential has increased so have the
community activities. Bush Estate now has all the elements of a large village and the
classification as “Countryside” in the North Norfolk Core Strategy can hardly be
justified.
Condition 2 of SM10495 says “The proposed dwelling shall be used for habitation
purposes during the period from the 29th March to 31st October and for any three
weeks including Christmas Day in each year and at all times will be used only for the
storage of household effects
Condition 1 of PF/12/0511 says “The property subject to this permission shall be used
for holiday accommodation purposes only and shall not be used as the sole or main
residence of the occupiers.
The situation is somewhat muddied by the precise wording of both conditions in that
the first does not limit the use to holiday accommodation and allows full time
permanent residential occupation and the second does not limit occupation to short
term lets and so could be occupied on a permanent basis provided it was not occupied
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as a main residence and that they had a genuine alternative address. SM10495 is the
precedent permission, PF/12/0511 merely a variation of it which implies that provided
the second “limb” of the condition (the property not being the occupiers’ main
residence) was being complied with then the Authority could not enforce against the
first “limb” (holiday accommodation only).
Substantially more than half the dwellings on Bush Estate are occupied on a
permanent basis and no evidence could be found of the Local Planning Authority
attempting to enforce Condition 1 on other dwellings in the locality. However there is
evidence of the granting of Certificates of Lawful Use for permanent occupation
indicating that the Authority chooses not to enforce the condition or that it believes the
condition is unenforceable.
The Authority relied upon Policy SS2 in PF/12/051, Sandshell is clearly already in
residential use as defined in Class 3(a) of the Town & Country Planning (Use Classes)
(Amendments) (England) Oder 2010 and has been used for many years by Mr and
Mrs Crisp as a second home and the fact that a dwelling is only occupied for part of
the year or for short periods does not alter the fact that it is a dwelling. The removal of
the condition would not therefore result in new residential development contrary to
policy SS2 but would remain an existing dwelling.
Paragraph 55 of the Framework advises that housing in rural areas should be located
where it will enhance or maintain the vitality of rural communities. There are some 230
dwellings in the immediate vicinity of Bush Estate, a search of North Norfolk District
Council’s records revealed only seven with holiday occupancy conditions, the
Authority’s council tax records indicate around 170 dwellings are permanently
occupied (paying full council tax) with only seven applying for holiday relief (Source
Valuation Office and North Norfolk District Council, Council Tax Department). Full time
residential occupation is already a feature of this substantial rural settlement and
housing is acceptable in this location because Bush Estate is a rural settlement.
The settlement is not scattered, it was planned on a grid line basis and as such is
much more sustainable than the nearby settlements of Happisburgh, Sea Palling and
Lessingham for which new housing is proposed. This proposal does not require any
development, the bungalow meets a high level of sustainability, meets current building
regulation standards and has all the essentials of full time residential occupation.
Holiday homes that are occupied as second homes cannot be considered as holiday
accommodation. Sandshell is not subject to any conditions restricting its use to short
term lets or precluding its use as a second home, it has been used as a second home
by Mr and Mrs Crisp for 49 years and thus the removal of the disputed conditions
would not conflict with Policy SS2. Indeed it is difficult to see how the Authority could
refuse an application for a Certificate of Lawful Use for a second home.
The matter of viability is also an important consideration and in Appeal Decisions
APP/E9505/A/12/2175737 and 2175740 which allowed the removal of identical holiday
conditions the appellant successfully demonstrated that the existing tourism use was
no longer viable. This was supported by evidence from an independent chartered
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surveyor and Hoseasons, market leaders in the letting of holiday accommodation, they
pointed out that the lack of holiday facilities made lettings of this type of property very
difficult.
On the question of viability it is unlikely that any investor would choose to purchase the
property to make it available for a holiday letting as the returns would be unacceptably
low, the returns would be unlikely to cover the costs of financing the purchase. The
Hoseasons Group, one of the market leaders in holiday lettings in the area, see no
prospects for holiday lettings for more than about 12 weeks per year and in excess of
20 weeks or more would be required to make Sandshell viable as a holiday letting.
Condition 1 is unenforceable, and unreasonable. A condition should not be imposed if
it cannot be enforced. The applicants have used Sandshell as a second home in
breach of Condition 2 of SM0495 and Condition 1 of PF/12/0511 for a period of more
than ten years and are immune from enforcement action.
David Will
November 2014
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