TOWN & COUNTRY PLANNING ACT 1990 (AS AMENDED BY THE PLANNING
AND COMPENSATION ACT 1991)
WINDSOR DEVELOPMENT CONTROL PANEL
REPORTING OFFICER:
1.0
DAVID TRIGWELL
HEAD OF PLANNING
PURPOSE OF REPORT
To provide a summary of recent planning and enforcement matters in relation to The
Old Mill House, Mill Lane, Windsor, Berkshire, SL4 5JQ and to seek authorisation for
the commencement of enforcement action in relation to:
(a)
(b)
(c)
the alleged unauthorised change of use of two out-buildings;
unauthorised works to renovate the two out-buildings; and
the non-compliance with Condition 5 of planning permission ref. 04/85169.
2.
OFFICERS RECOMMENDATION
In relation to (a) above that the Council should instigate enforcement action to ensure
the cessation of the unauthorised use of the two out-buildings, referred to in this
report as the Garden Cottage and the bungalow.
In relation to (b) above that it would not be expedient to instigate action under listed
building legislation for the works to the two out-buildings.
In relation to (c) above that it would not be expedient to instigate enforcement action
in relation to the non-compliance with Condition 5 of planning permission ref.
04/85169.
3,0
SUPPORTING INFORMATION
3.1
Background
The Council, as the Local Planning Authority, is required to consider all matters
which may constitute a breach of planning control within their areas, and they have
general discretion to take enforcement action when they regard it as expedient
(paragraph 5 of PPG 18 – Enforcing Planning Control). Local Planning Authorities
also have the primary responsibility for taking whatever enforcement action may be
necessary in the public interest (sub paragraph (1) of paragraph 5) and that this
action should always be commensurate with the breach of planning control to which
it relates (sub paragraph (4)).
3.2
Location & Recent History
3.2.1 The Old Mill House is a Grade II listed building situated within the Clewer
Village Conservation Area. It is situated at the end of Mill Lane and has an
extensive garden area. Within the garden area are three out-buildings that the
Council considers are within the residential curtilage of The Old Mill House
and should be used for purposes incidental to the enjoyment of the main
house. The three out-buildings are:
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(i)
a poolside building, situated approximately 65 metres to the north-east of
the main house;
(ii)
a garden cottage, situated approximately 40 metres to the north of the
main house. This is a two storey building which has recently been
renovated with the insertion of new windows and doors.
Internal
renovation works have also occurred to modernise the inside of the
building; and
(iii)
a wooden ‘bungalow’, situated approximately 130 metres to the west of the
main house. This was until recently derelict and had been for many years.
Some limited works have recently occurred both internally and externally in
the renovation of the building. The external works have involved the
renovation of the external walls and the replacement of the windows.
3.2.2 Most recently planning permission and listed building consent was granted for
the “Conversion of existing dwelling into three and erection of a detached (5
car) garage” and the “conversion of existing dwelling (The Old Mill House) into
three dwellings following some demolition and alterations to existing”.
References 04/85169 and 04/85170 respectively, both granted on the 3 rd
March 2005.
Most of these conversion works have now been completed, with the main house now
separated into 3 individual units.
It is not considered these approvals have altered the position in relation to the three
out-buildings in question, which in the Council’s opinion remain incidental to the use
of the main dwellinghouse, whether one or a number of the three new dwellings
created out of the conversion of The Old Mill House.
3.2.3 Enforcement Officers initially received complaints about the unauthorised
conversion of the three out-buildings into separate individual dwellinghouses
and whether action, under listed building legislation, should be taken in
respect of some external and internal renovation works that had taken place to
the out-buildings. The manner of the Council’s investigation of these
complaints is currently subject to a complaint made to the Local Government
Ombudsman, although the outcome of this is not relevant to the consideration
of whether it is expedient to take enforcement action in this case. The
decision from the Ombudsman is still awaited.
Since the original complaint was received, a number of visits have been made to the
site by Enforcement Officers and the owner has also been advised on a number of
occasions of the Council’s position in relation to the authorised use of the outbuildings. However, it was not until the most recent visit by the Enforcement Officer
on the 10 February 2006 that an unauthorised use of two of the out-buildings was
considered to have taken place.
In relation to the poolside building (3.2.1 (i)), this out-building is referred to in the
complaints made to the Council but does not form part of this report because it is
considered that its present use is incidental to the enjoyment of the main house
(whether to one or a number of the three new dwellings created out of its conversion)
and there has been no breach of planning control. It is also considered that the
physical alterations that have occurred to this out-building require neither listed
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building consent nor planning permission and again do not amount to a breach of
planning control.
During the site visit on the 10 February 2006 it was clear that the Garden Cottage
(3.2.1 (ii)) was being used as an independent property separate from The Old Mill
House. Subsequent conversations with the owner have confirmed that this position
remains today. Works to renovate this building have also occurred which do not
require planning permission but would require listed building consent if the building
can be demonstrated to meet all the requirements of a “curtilage listed” building. The
Conservation Officers view on these works is given in paragraph 4.2 of this report.
It was also clear during the most recent visit that the bungalow (3.2.1 (iii)) was also
being used as an independent property separate to The Old Mill House. Works to
renovate this building have also occurred which also do not require planning
permission but as with the Garden Cottage would require listed building consent if
the building can be demonstrated to meet all the requirements of a “curtilage listed”
building. The Conservation Officers view on these works is given in paragraph 4.2 of
this report.
3.2.4 More recently the Council were asked to investigate an alleged noncompliance with Condition 5 of planning permission 04/85169, see paragraph
3.2.2 above. This has also formed part of the recent complaint made to the
Ombudsman.
Condition 5 stated:
“No part of the development hereby permitted shall be occupied until vehicle parking
spaces (including the garage hereby approved and the additional 3 spaces shown on
drawing 203010 P00/rev A received 28 June 2004) have been provided in
accordance with the approved drawings. These spaces shall thereafter be kept
available for parking at all times.
Reason: To ensure that the development is provided with adequate parking facilities
in order to reduce the likelihood of roadside parking which would be a danger to other
road users.
Relevant Policies: Local Plan P4.”
The site visit on the 10 February 2006 revealed that the condition had not been
complied with because one of the newly formed dwellings was occupied without the
garage having been built. The remainder of the condition had been adhered to, in
that the vehicle parking spaces, as shown on the approved plan and including where
the garage is to be built, were available. The owner stated his intention to erect the
garage and said the delay had been due to legal, party wall, difficulties with the
neighbouring property. The owner has repeated this intention during a recent
conversation with the Enforcement Officer.
4.0
RELEVANT CONSIDERATIONS
4.1
The Enforcement Officers consider both the Garden Cottage and bungalow to
be out-buildings within the residential curtilage of The Old Mill House and thus
should be used for purposes that are incidental to the enjoyment of The Old
Mill House (either for one or for a number of those three new dwellings created
out of its conversion). The owner of the property does not concur with this
position and considers that both of these out-buildings are separate residential
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dwellings. He considers they have an established use because, he alleges,
they have been used as separate units for many years. He advises that he
has considerable records and information provided by the previous owners to
substantiate this position. He has been advised by Enforcement Officers that
he can submit a Certificate of Lawful Use application with this supporting
evidence but no application(s) have been forthcoming.
4.1.2 There are very limited Council records in relation to the previous use of these
two out-buildings. In respect of the Garden Cottage, there are Council Tax
records which show that they have a listing for a cottage within Old Mill Place
since 1993. It was exempt from Council Tax because it was considered
uninhabitable until 1996 when it was classed as a second home for the then
owner. In February 2004 it became registered for full Council Tax and
appears to have been used separately for periods before the original
complaints were made to Enforcement Officers. In relation to the old
‘bungalow’, there are no records but it was clear from the Enforcement
Officer’s initial visit to the site that this building was derelict and had been so
for many years.
The Council has considerable information from a local resident which supports the
Council’s current position that both these buildings have historically been used
incidental to the enjoyment of The Old Mill House. However, it should be noted that
the information provided by the present owner of The Old Mill House does appear to
contradict some of this evidence.
4.2
Listed Building Considerations
4.2.1 The issue in terms of the listed building is whether the two buildings should be
treated as curtilage listed buildings as they fall within the same ownership as
The Old Mill House. If the buildings are considered as curtilage buildings then
the physical alterations would have required List Building Consent.
The most basic test for a building to be considered as “curtilage listed” is that it
should have been constructed before 1948. On the evidence of the historic maps it
appears that both the Garden Cottage and the ‘bungalow’ existed before this date.
However, the advice in PPG15 is that:
“The Courts have held that for a structure or building within the curtilage of a listed
building to be part of a listed building it must be ancillary to the principal building, that
it must have served the purposes of the principal building at the date of listing, or at a
recent time before the date of listing, in a necessary or reasonably useful way and
must not be historically an independent building”.
4.2.2 With regard to both the Garden Cottage and the ‘bungalow’, evidence is
available that shows both these buildings existing before 1936, and
documents have been provided that indicate that the bungalow was in the
same ownership as the Mill House in 1947. Although the present owner of the
site has shown officers various property deeds that indicate that the present
site has been formed from various parcels of land over about the last 60
years, with some of the land being related at one point to the nearby
racecourse, which suggest that the buildings could have had a function
independent to the principal listed, he has not definitively demonstrated that
the buildings should not be regarded as curtilage listed.
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However, with regards to the physical works carried out to the building the
Conservation Officer considers that these amount to sympathetic repair and
refurbishment for which it is likely that it would have been recommended that listed
building consent be granted.
For the reasons given above it is your Officers opinion that it would not be expedient
to instigate enforcement action in respect of the physical alterations to the two outbuildings.
4.3
Planning Considerations
4.3.1 Policy GB8 advised that the use of buildings in the Green Belt will be
permitted if the use proposed and any associated works (for example
boundary walls and fencing) or any external activities would not have a
materially greater impact than the present or last use on the openness of the
Green Belt, the purposes of including land within it, and would not harm the
character and setting of the buildings. There are a number of other criteria to
be considered under Policy GB8, in this case the relevant ones being (4) that
the building is of permanent and substantial construction and in a sound
condition and is of a form, bulk and general design which is in keeping with its
surroundings; and (5) that the proposal would not require extensive
reconstruction of the buildings or a material increase in its size or scale.
Policy GB8 also refers to Policy GB3 in relation to Listed Buildings. If it is established
that the buildings are curtilage listed then the impact on the physical fabric, setting,
special character and interest of the Listed Building(s) will also need to be
considered, although from paragraph 4.2 above, there are no concerns in respect of
the physical alterations that have taken place.
If the use of the buildings as separate dwellings does not satisfy the provisions of
Policy GB8 then the use would amount to inappropriate development in the Green
Belt under Policy GB1 and very special circumstances would have to be made in
order to overcome the harm caused by reason of its inappropriateness and any other
harm caused such that an application could otherwise be permitted.
The out-buildings lie within Flood Zone 3 (High Risk) and the provisions of Policy F1,
particularly in respect of increasing the number of people or properties at risk from
flooding, is considered to be a weighty matter in the consideration of the need or
otherwise to take enforcement action in the absence of a demonstration (usually by
way of a Flood Risk Assessment) to indicate otherwise.
For this reason it is considered expedient to take enforcement action against the use
of the two out-buildings as separate dwellings rather than for purposes that are
incidental to the enjoyment of The Old Mill House (whether for one or a number of
the dwellings created out of its conversion).
4.3.2 In respect of the breach of Condition 5 of planning permission 04/85169 the
owner has stated his intention to erect the garage once the legal, party wall,
matter has been resolved. It should be noted that the reason for imposing the
condition was to “ensure the development is provided with adequate parking
facilities in order to reduce the likelihood of roadside parking which would be a
danger to other road users”. This has been achieved in that the parking is
available in the positions shown on the approved drawings. The only breach
is the failure to cover 5 of the 8 parking spaces through the erection of the
garage which, in itself, does not impact on the reasoning behind the condition.
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For this reason it is not considered expedient to instigate enforcement action to
require the erection of the garage.
5.0 RELEVANT LEGISLATION
5.1 The Town and Country Planning Act 1900
Section 172(1) of the Act states:
“The local planning authority may issue a notice (in this Act referred to as an
“enforcement notice”) which appear to them –
(a)
that there has been a breach of planning control; and
(b)
that it is expedient to issue the notice having regard to the
provisions of the development plan and to any other material
considerations.”
Section 172(2) states that the notice must be served on the owner of the land to
which it relates and also any other person who has an interest in that land.
Section 172(3) requires that the notice shall be served not more that 28 days after its
date of issue and not less than 28 days before the date specified in it as the date on
which it is to take effect.
It should be noted, in relation to the non-compliance with condition 5 of the planning
permission 04/85169, that the Council would need to issue an Enforcement Notice
under S.172.
5.2 Planning (Listed Buildings and Conservations Areas) Act 1990
Section 38(1) of the Act states:
“Where it appears to a local planning authority –
(a) that any building works have been or are being executed to a listed building
in their area: and
(b) that the works are such as to involve a contravention of Section 9(1) or (2)
they may, if they consider it expedient to do so having regard to the effect of the
works on the character of the building as one of special architectural or historic
interest, issue a notice under this section (in this Act referred to as a “listed building
enforcement notice”).
Section 9 of the Act allows for a local planning authority to instigate prosecution
proceedings where serious unauthorised works have occurred to a listed building,
which can not be remedied by the issuing of a Listed Building Enforcement Notice.
6.0 IMPLICATIONS
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6.1 Human Rights Act
The Convention Rights under the Human Rights Act 1988 relevant to this report are
Article 1 – The first Protocol – Entitlement to a peaceful enjoyment of possessions
and Article 8 Right to respect for private and family life.
6.1.2 In respect of the unauthorised use of the two out-buildings. The victims are
the owner of the land who will no longer receive the income generated from
their separate letting, along with those currently living in the accommodation
who will need to find alternative accommodation. The third party victims are
also those currently living in the accommodation along with the neighbouring
properties who are put at increased flood risk by the creation of two new
dwellings within this High Risk flood zone.
6.1.3 In respect of the works to the two out-buildings. The victims are the owner of
the buildings who will incur the cost of reversing the unauthorised works.
6.1.4 In respect of non-compliance with condition 5 of planning permission
04/85169. The victims are the owner who will have to build the garage
required by the condition.
7.
RECOMMENDATION
7.1
That Members authorise enforcement action under S. 172 of the Town
and Country Planning Act 1990 to ensure the cessation of the
unauthorised of the two out-buildings, referred to as The Garden
Cottage and the bungalow, as separate units of accommodation.
7.2
That Members do not authorise enforcement action under S. 38 of the
Planning (Listed Building and Conservation) Areas Act 1990 for
alterations to the two out-buildings, referred to as The Garden
Cottage and the bungalow.
7.3
That Members do not authorise enforcement action under S. 172 of the
Town and Country Planning Act 1990 for the continued non-compliance with
Condition 5 of planning permission 04/85169.
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