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Housing – Other

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Updated 11 May 2007, this page includes various recent decisions on appeals against refusal of planning consent. Summarises of appeal decisions arising from refusal of planning consent are available at www.Planning Reource.co,uk/dcs, with a copy of the decision letter also available for a fee.

Housing appeals have been split into four categories, namely:

        New (green field) including re-use of agricultural land

        New (brown field) being the redevelopment of other categories of land

        Conversions, being the conversion of an existing building, with perhaps an extension.

        ‘Other’ is a miscellany such as extensions, outbuildings, walls, access and other items not covered by the three main categories.

The category decision is ours, and you may disagree! Some cases are hard to categorise, so it may be worth checking out the others.

'SoS' = Secretary of State. 'DETR' is now ‘DCLG’ = Dept for Communities and Local Government.


Agricultural occupancy condition lifted. Not in the GB but of interest. This condition was lifted from a dwelling in Hampshire after the Inspector agreed it was no longer justified, with costs awarded against the council. The house was built in 1995 and was in separate ownership from the farm. There was now no longer any chance of the agricultural use being re-established and a marketing exercise had been carried out. The council thought the 30% discount because of the condition was insufficient and 50% was more appropriate. The appellant argued the 30% discount was normal and the council produced no evidence to substantiate the higher figure. DCS 10040730. 10.2.06

1st floor addition to detached garage approved in Bucks GB. It would not result in a loss of openness. The garage was about 4m from the house and the council argued it did not fall within the definition of extension and alteration of dwellings. The Inspector referred to Sevenoaks DC v SoS for Environment and Dawe 1997 which ruled that a garage could be part of a dwelling being a normal domestic adjunct even if detached. In this case the garage and extension would remain small compared with the main house and would not be disproportionate, and did not extend the footprint. DCS 1`00042207. 2.6.06.

 

Orangery refused in Essex GB. This proposal at a grade 11 listed building was deemed inappropriate with no VSC. It would be a major addition to the 18th Century house 49m2 to the previous 35m2 floor area for a family room. The high quality of the design did not make it acceptable. DCS 100041252. 24.3.06

Filming at house was material change of use in Herts GB. The Inspector decided this use, involving considerable activity including lights, was not incidental to the use as a house. Local residents had made numerous complaints resulting in an enforcement order being issued to stop this use. The use did not undermine the openness of the GB but the level of activity was excessive and adversely affected the amenity of residents. This use could not be mitigated by conditions, she held. DCS 100040038. 13.1.06

Conservatory colour condition deleted in Cheshire GB. The council required brown uPVC to suit the GB location and character of the area, but the appellant wanted white. The inspector decided the modestly sized conservatory would be mainly hidden by a 2m screen wall and had a shallow-pitched roof. The house windows were of white uPVC so the conservatory should match them. DCS 100038762. 7.10.05.

Timber steps approved in Derbyshire GB. Two flights of steps, 4 and 10 steps resp., would be covered with soil and turf plus some minor re-grading of the slope between a house and meadow. Engineering and other operations were normally inappropriate under PPG2 unless they maintained the openness and did not conflict with the purpose of including the land in the GB. Given the scale and design they were rural in appearance. DCS 100038574. 23.9.05

Pool cover allowed in Surrey GB. The inspector ruled that the cover was a building comprising 8 green-coated framed sections with clear plexi-glass glazing. The acid test were its size, degree of physical attachment and permanence. Although the sections could be telescoped, they ran on rails making a physical attachment to the ground. It was permanently bolted in position since erection 5 years ago, and it was not material whether it was open or closed. It was, therefore a building and a building operation had been carried out to erect it. It was inappropriate in the GB. However the appellant’s wife had a back ailment and had been advised to swim daily. This was a very special circumstance outweighing the small loss of openness. DCS 100039026. 28.10.05

Kent GB garage extension approved after GPDR trade-off. When the house and garage were originally approved the General Permitted Development rights were removed. A two-bay garage extension was sought, doubling its length with the offer of a legal agreement to remove GPDR on an adjoining house they also owned. The inspector agreed the extension was inappropriate but the offer was a very special circumstance justifying approval. DCS 100038915. 28.10.05

Annexe not used for 4 years in Herts GB. Failure to prove use of the annexe for 4 years meant the enforcement order was valid, requiring cessation of use as a separate dwelling house. Although it had been rented out the potential occupier did not occupy the building. The appellant argued the house was heated etc for occupancy. The 4-year immunity period ceased when it was not occupied and a new period started when it became occupied again. The appellant also failed to specify the curtilage of the annexe. DCS 100037791. 29.7.05

St Albans GB house gets temporary approval. In 1971 the appellant moved onto the land living in a caravan. In 1991 permission was granted for a cattery and staff accommodation. The cattery was not opened but a bungalow was built. An EO was served as a flagrant breach of planning control. Alternative solutions had been examined but the house remained at issue. The High Court judge found the appellant had recently had a stroke and had nowhere else to live. In giving approval for the appellant to remain he said this did not set a precedent for inappropriate development in such locations. St Albans DC v Henderson and another. 12.11.04. Ref 04/TLQ/1064

Barn rebuild refused in Worcs GB. IF approved a gymnasium with bathroom would occupy the exact footprint of a collapsed barn. Building work had started. The Inspector ruled that the original barn was structurally unsound and incapable of conversion. The new building would harm the openness of the countryside. DCS 36022260. Nov 2004.

Replacement house approved in Herts GB. The original house was destroyed by fire and in 1991 a replacement was approved assuming a 30% increase in size. In fact it was 260% bigger. A further permission was granted in 2001 taking into account what had already been built but restricting the size of the basement. The eventual building did not accord with either permission and had a huge basement. An EO was dismissed , the appellant proposing reductions in the ground and first floor sizes to compensate for the basement. The original house was 380sq.m. and the proposal was 951 sq.m. plus basement of 451sq.m. The Inspector ruled this was too big but if dismissed, a cert of lawfulness could be applied for relating to the existing house. That cert would not be bound by conditions so the building could be extended under GPDR. The appeal, was upheld to reflect the work done, limit the size of the basement and remove GPDR. This would prevent further damage to the openness of the countryside, making a very special circumstance. DCS 49143308. Nov 2004.

Garden extension into Dorset GB refused. The appellant bought a chalet, paddock and stables in 1992, and started using the chalet as a residence in 1999, fencing off a garden area. In February a lawfulness certificate was issued for the residential use of the chalet but not the garden. An enforcement order was issued against the garden since it was a change of use within ten years rather than the four years applicable to the chalet. The Inspector upheld the enforcement order since the garden was outside the application plan. Also TCPA 1990 section 171B(2) related to immunity of buildings with no mention of associated land or activities on adjacent land. The garden area was not de minimus. Granting permission would consolidate residential development detracting materially from the rural character, visual amenity and openness of the paddock and surroundings. The lack of garden space was not sufficient to justify approval. DCS 30092233. Oct 2004.

Notts GB asylum centre refused. The Home Office wanted to re-use a former RAF station as an accommodation centre for asylum seekers. The 15.8 ha site contained 64 houses and other buildings. They had searched nationally for suitable sites and needed this accommodation to deal with applications within 6 months of a case being received. The DPM agreed with the need etc but he saw no specific policy requirement to assess alternative locations, given the GB location of this site. It would harm the openness of the GB, reinforced by the limited access of the site by non-car means of transport. DCS 35069439. July 2004.

Inadequate order on Cheshire GB land declared void. An enforcement order was issued against the use of agricultural land for repair of a canal barge and sundry other breaches. It did not include the unauthorised extension of the residential curtilage associated with the adjoining house. It was quashed as void for uncertainty. It referred to ‘operational development’ under TCPA 1990 section 171A(1)(a) alleging breach within the last four years. The Inspector ruled it should have specified a material change of use with a time limit of ten years and include the residential use. The notice would not achieve the council’s objectives, and a new order would result in injustice because its requirements would be more onerous. DCS 31998453. April 2004

Tennis court within Surrey Hills GB/AONB house curtilage allowed. It did not involve erecting any building. Citing another case the council argued it was inappropriate development, but the Inspector decided it was an engineering operation. It would not undermine the openness of the area, would not encroach into the countryside or lead to urban sprawl. DCS 38213210. June 2004.

Horse walker facilities at Herts GB home required permission. This apparatus within the curtilage of a home was not within General Permitted Development Rights Order 1995 class E part 1, schedule 2, nor TCPA 1990 section 55(2)(d) since it was an operational development. However it was an appropriate form of development within the GB so the Inspector did not uphold the enforcement order against it. DCS 32349282. April 2004.

 

Garage outside cartilage of cottage in Kent GB – The land was opposite the cottage and had been purchased in 1990 and used in connection with residential occupation of the cottage. As such the appellant claimed it was within the curtilage of the cottage. The Inspector quoted two previous case which defined curtilage as a limited area around a building with an intimate association with it. The cottage had been bought before the appeal site and there was no historic linkage of the two sites. The double-fronted garage and paved hardstanding harmed the openness. DCS 42885485 October 2003.

Security measures allowed despite harm to GB – A grade 11 listed house in the Berks GB can have various security improvements because it will be used by the ruler of Abu Dhabi and president of the United Arab Emirates, creating a very special circumstance. The reduced openness would be minor, and well away from the house and other listed features. DCS 34449422. October 2003.

House too expensive for agricultural worker - A 1969 approval restricted use of a house in the Surrey GB to agricultural workers. The house remained unsold after 8 months despite a 25% reduction in price. Attempts to sell it did not mention the restriction. Valued at 2.25m with the restriction, the Inspector agreed that it was too expensive for agricultural workers, so he lifted the restriction. DCS 43168208

Conditions not relevant in permission for Cheshire GB replacement dwelling – approval had removed permitted development rights for extensions, free-standing buildings, accesses and enclosures within the cartilage to protect the visual amenity and openness of the GB. The Inspector ruled that circ 11/95’s advice on imposing conditions to restrict further development should only be used in exceptional circumstances. Dwellings in the GB should have the same rights as any other, and those rights should not be removed simply because of the GB location. The Inspector restricted the condition to extension of the new dwelling. DCS 44464267. Aug 2003.

Essex GB airfield immune from enforcement action – The site contained a dwelling house and was used for managing a beef herd. In the 1980’s a runway was created for an aircraft used for flying a display advert. An enforcement notice was issued in 1999 against aircraft movements and storage on site. On appeal the Inspector ruled that the whole planning unit was the house and airfield and its use had not changed materially in the last ten years so it was immune from this enforcement. The Court of Appeal case also reconsidered a previous enforcement decision regarding enlargement of the hangar where the Inspector held that the hangar was not within the cartilage of the house, and even if it were storage of a plane was not a normal activity connected with a house, so there were no very special circumstances. This was overturned. DCS 46128594. July 2003. (Note – there may be a parallel with helicopter use at private houses)

Roof space planning restriction is valid - Permission for a new roof in an Essex GB house had a condition restricted any loft conversion. The appellant argued that the local authority did not have power to impose this condition since it was not classed as a development, or was permitted under the General Permitted Dev. Order 1995. In this case the Inspector decided that 3 new windows, a staircase & the new 75sqm living space was a development requiring permission, exceeding the 37 sqm. limit set by the Council. DCS 54705545.

Basement in new GB property did require planning permission - A replacement two-storey dwelling had been approved in the Met GB. When built it had a basement with protective metal fencing around the lightwells. An enforcement order for blocking up the basement was upheld because planning permission was required because of a material change in the external apprearance, particularly at night when lights shine from the basement. The basement resulted in a 137% increase over the original building. The basement could not be allowed under section 55(2)(a) since it was created at the same time as the house was built. There was no existing building to which the basement could be constituted as an alteration. An argument that the space was necessary for 21st century standards was rejected as a very special circumstance. Sevenoaks DC 6 Nov 2002. DCS 36162992

Conservatory cannot become authorised by outbuilding demolition - An unauthorised 38sqm conservatory plus approved extensions had increased the original dwelling by 80sqm, well in excess of the 35sqm limit in the local plan policy. the appellant offered to demolish a barn-like building and relinquish permitted development rights in order to retain the conservatory. The Inspector concluded that this would be harmful, undesirable, and could undermine GB policy. Basildon DC 20 June 2002. DCS 33980756

Granny flat approved in Essex GB - Located in the Met GB, a garage extension had been approved conditional upon it not being used for habitable rooms. The Inspector siad the purpose of the development was to provide adequate accommodation for the appellants, their three children and their pernsioner parent who had formerly lived at the main property. This change would not increase the use of the property. there was already a double garage and curtilage parking for six cars. The change would not add to the building, increase the bedrooms or number of people living there. It would merely enable the elderly relative to live independently. the internal alterations were not a 'development' requiring permission. Brentwood BC 25 July 2002. Dcs 38102251.

Harrogate - ornamental lampposts refused as outside residential curtilage - 14 3m high ornamental lampposts, topped by Voctorain-style lanterns, were erected on a 90m access road across a paddock to a large detached Victorian house in the Harrogate green belt. The appellant argued the road effectively extended the residential curtilage so the lampposts were allowed under GPDO 1995. The Inspector disagreed, saying that the'curtilage' defined an area of land in relation to the building and is not a use of land. The road crossed two paddocks so it was outside the curtilage. The lampposts were an engineering operation and had a material effect on the openness of the countryside. This harm was compounded by an urbanising effect of the lampposts. Harrogate BC 30 May 2002. DCS 54641197

Agricultural occupancy condition did not apply - Not in green belt, but of interest. A 1986 outline permission included this occupancy condition and requiring improvements to the site access before development began, which were reinforced in the reserved matters approval. The appellant said failure to comply with these 'conditions precedent' meant the dwelling was not authorised by the planning permission so there was no restriction on occupancy. There were two 1992 cases where it was held that development carried out in breach of conditions was not authorised by the planning permission. The Inspector agreed and decided that since the dwelling had been built in 1990 and used as a dwelling for 4+ years, no enforcement action could be taken. Torridge DC 30 April 2002. DCS 32980203.

Agricultural dwelling restriction upheld - Not in the Green Belt but of interest. Planning permission was granted in 1961 for two dwellings restricting their occupation to agricultural workers. The Inspector refused to grant a lawful development certificate (LDC) to allow occupation by someone not employed in agriculture. Permission was granted in 1979 to convert them into one dwelling and the owner claimed this created a new planning unit without the restriction. The Inspector said the conversion did not require planning permission so the original condition remained in force. Horsham DC 8 Feb 2002. DCS 33896681

Restrictions on cellar use unreasonable - Planning approval of a bungalow restricted use of the cellar to the enjoyment of the dwelling but not for living or sleeping. It was built in the green eblt about 3 years ago with a floor area of 108sqm, about 30sqm larger that the replaced bumgalow. Access to the cellar was by extrenal steps, and it was light, warm and well ventilated. The Inspector ruled that Circular 11/95 lacked clarity as to whether 'ancillary' use included living and sleeping. The Inspector rejected council arguments that such use could lead to more children in the garden, more washing on the line, and more cars, since these were unpredictable and could not be taken into account. the condition was overruled. Rochford DC 12 April 2002. DCS 41271352.

Summerhouse & mobile home cannot be replaced by log cabin on banks of Thames - Occupancy of the existing structures were legally restricted to 1Marcyh to 31 October, and for leisure and recreational use. They were well shielded from view. A log cabin would be more substantial and be a permanent residence with was inappropriate in the green belt. It would significantly increase the amount of ground covered in the flood plain contrary to PPG25 on flooding. Putting the cabin on piers would not guarantee retaining flood capacity because they might obstruct flood debris. RB Windsor & Maidenhead 10 April 2002 DCS 56930158.

Summerhouse allowed for viewing cricket - An elderly man used a summerhouse in his garden to watch cricket in the adjoining field in the Staffs green belt. The floor area exceeded 10sqm and it was more than 2.5m high.The Inspector agreed it was inappropriate but squashed the enforcement order requiring its removal. The structure caused a physical and visual loss of openness, but was modest in size and unobtrusive. It replaced a concrete and asbestos garage on the site and was more visually acceptable, creating a very special circumstance. Stafford BC 25 March 2002. DCS 38555757

Excess floorspace allowed due to improved appearance - An extension to a Green Belt property was allowed despite cumulative doubling of the 37sqm threshold in the local plan policy. The Inspector agreed that it would reduce the openness of the countryside, but it would be above the existing incongruous single storey extension and have a pitched roof, thereby improving the appearance. Brentwood DC 22 Jan 2002 - DCS 34193814

Work deemed more than maintenance or improvement - A former workshop was demolished to slab floor level and new walls started before an application to build a dwelling on the site. The application was refused, an appeal dismissed, and an Enforcemet Order issued which was upheld by the Inspector. It was inappropriate development in the green belt and the walls must be demolished. The applicant said the work was done piecemeal and was refurbishment so there was no breach of planning control. The Inspector disagreed and also said the external appearance would be substantially different. Pendle BC 20 Nov 2001. DCS 49827132.

Wentworth house extension allowed by High Court - Wentworth has strict policy restrictions on house extensions. At a large house there were unauthorised garages, a store, and swimming pool. Approval was refused by the Council, but the first Planning Inspector upheld an appeal. The Council went to Court and successfully challenged this decision because the Inspector had not considered allowing a reduced scale of development. However a second Inspector allowed the two cases in contection, ruling that a smaller garage would be disproportionate, and altering the swimming pool would be wasted effort achieving little in terms of protecting the Green Belt. He granted planning permission but removed most householder permitted development rights. Runnymede DC 15 Oct 2001. DCS No 53744756

Granny flat in garden would impede flood storage capacity - A granny annexe in a house garden had implications for flood water storage in the Staines green belt. The house had been extended by 12 sqm, plus this 29 sqm. annexe exceed the local plan maximum of 30 sqm which minimised the impact on flood water storage. The Inspector ruled that although this extension would only have a slight impact, it would lead to a cumulative effect from residential extensions.Royal B of Winmdsor & Maidenhead 20 Sept 2001. DCS No. 54182665

Cottage extension would create a more harmonious appearance - A Northumbrian cottage had already been considerably extended but the Inspector allowed a further extension to give it a more balanced and pleasing appearance. This further extension would be disproportionate, and by definition harmful to the green belt. Neither was it needed to improve amenities since the cottage already had 4 bedrooms. However the cottage had various unrelated elements and the proposed roof over the extension would match the pitch over the main roof, amounting to a very special circumstance justifying permission. Tynedale DC 3.7.2001. DCS No. 35104810

Canal boat mooring refused - The Sec. of State refused a scheme promoted by British Waterways to moor boats for residential use on the Kennet & Avon Canal, near Bath. The agency said there was a strong demand and was approriate for the setting. The Inspector said it was inappropriate in the green belt and would permanently erode the openness of the area which was open and tranquil, complimenting the setting of the cirty's conservation area. A line of 12 long boats and associated domestic paraphernalia would be harmful. There were no mains drainage or electricity, so there would be poor and inconvenient living conditions.

The area was suitable for water voles whose numbers were declining dramatically nationally. the Sec of State agreed that demand did not outweigh the identified harm. Bath & N E Somerset Council - 8 May 2001 - DCS NO. 33940017

Fence marginally too high - planning permission required - A wooden fence, at a 3-house development was 2.1m high in parts, exceeding the 2m limit. Although a de minimus transgression, planning permission was required said the Inspector. The Council had issued and enforcement order requiring removal of the fence. The Inspector quashed the order and granted permission since the impact was of a limited nature. This does beg the question of 'what is de minimus'?

Orchard allowed to become a residential garden - Although in the green belt, and the Chilterns area of outstanding natural beauty, the Inspector allowed an orchard to become residential garden land. A metalled track clearly demarcated the land from wooden countryside. The change of use would not harm the openness of the green belt nor detract unacceptably from the visual amenity of the locality. Wycombe DC - 15 May 2001. DCS NO. 33408770

Building extension too large - A 50sqm extension would increase the original house by 70% when taking into account a previous extension. Standing in 0.2 ha. of grounds, the 2-storey building would have a bigger footprint and bulk. The Inspector said it was important to apply planning policies consistently in order to protect the green belt. Royal Borough of Windsor & Maidenhead, 24 April 2001. DCS NO 33011286

New wall would harm visual amenity of area - The Inspector upheld an enforcement order requiring the removal of unauthorised entrance gates, walls and railings at a dwelling in the Green belt. While not inappropriate it gave the property a suburban appearance out of character with the semi-rural surroundings. Either the wall could be reduced by 1m or rebuilt some distance within the site, away from the highway. Welwyn Hatfield DC 27 April 2001. DCS No. 43185696

Conservatory permitted - The original dwelling had been increased by 123%, from 130sqm to 290sqm, and the Council refused permission to further extend it with a conservatory, being inappropriate development. The Inspector ruled that the small size of the conservatory would not harm the openness of the countryside. Freezing the size of the building was a simplistic, not a balanced approach. A more analytical approach was required. This modest extension was not inappropriate in the Green Belt. South Beds DC 1 May 2001. DCS NO. 29793128

Wall not permitted in green belt due to highway proximity - The Inspector upheld an enforcement order requiring the reduction in height of a 1.8m wall and railing at a house in the green belt. Although separated from the highway by a grass verge, the wall was no more that about 2m from the edge of the highway. Because it was more that 1m high it was not permitted by class A of part 2 of schedule 2 of the General Permitted Development Order 1995. The wall, railings and piers had a suburban character which was at odds with other frontages of mixed hedgerows and timber fences. This harmed the character and appearance of the Chilterns area of outstanding natural beauty. Wycombe DC 9 April 2001 DCS No 37201660

Large house extension would breach Green Belt protection & create precedent - A 2 storey rear extension with a ground floor extension to the front, and a single storey rear extension after demolition of existing extension were refused planning permission and the Council voiced concern that considerable pressure for extensions and outbuildings had led to an urbanisation of the green belt. The original house was 77 sqm, and a single storey 25.6 sqm extension was approved. Under the first appeal, the new floorspace would be 129.3 sqm - a 184% increase. The second appeal would increase floorspace by 73%. The Inspector thought them inappropriate increases and by definition harmful. They would create a precedent for other properties, the cumulative effect being to erode the countryside and encourage coalescence. Runnymede Council - 8 January 2001 ref APP/Q3630/A/00/1050578

Residential use occurred despite absence of overnight sleeping - A building at a Green Belt smallholding had enforcement and other notices served alleging residential use and directing against an extension of the building. An appeal was upheld despite there being no sleeping accommodation. The building was only used when the owning family visited the site during the day. The Inspector concluded that the absence of one element of daily living (sleeping space) did not mean the building was not used for residential use. He noted that the holding was not in viable horticultural use and there was no justification for residential use of any of the buildings enforced against. S Bucks Council 4 Dec 2000 - N0401/C/00/1044788

Domestic addition in green belt - The Inspector quashed an enforcement order and granted permission for a single storey garage and domestic store at a new house. However Runnymede Council took the case to Court and had the Inspector's decision overturned. The house received planning permission in 1998 and then some alterations were approved. A further application for an additional garage and store were refused as excessive being in the Green Belt. The inspector said very exceptional circumstances applied. In Court the Judge found that the Inspector appeared not to be concerned with the impact on the Green Belt, or if he did, the reasons for not pursuing it were not clear. 14.11.2000 - CO/2257/2000

Dwelling extension approved on appeal - South Bucks DC failed in its challenge to an inspector's decision to grant permission for a first floor extension at a dwelling in the Metropolitan Green Belt. The High Court judge noted that whilst the inspector accepted the extension would double the floor area of the original house, the footprint would be the same. Although the proposal did not comply with the definition of 'small-scale' this did not mean an automatic refusal of permission. It was not a disproportionate addition and was within an area which had a suburban quality.

Bungalow extension allowed in Green belt - A single storey extension to a bungalow in the Essex Green belt was allowed on appeal due to special circumstances. Chelmsford Council refused permission to this proposal on the outskirts of Margaretting on the grounds that it would increase the visual intrusiveness of the property and harm the openness of the green belt. The Planning Inspectorate noted that the extension added 60% to the original property. However he said that the harm to the open character would be limited by being shielded by outbuildings and the close proximity of a large scrapyard. The bungalow's current living room was inadequate in size and the proposal would improve the dwelling and enhance the housing stock. These special circumstances overcame the inappropriate nature of the development in the green belt.

Integral garage accepted in the green belt - Owner allowed to substitute an integral garage into the house instead of a detached garage in Warwicks. The Council said it would be difficult to prevent further development within the curtilage of the house through permitted development rights. The Inspector said the detached garage would increase the perceived built environment since the area between house and garage would be hardstanding.

New access road approved - A new access road to a cottage in Cheshire was allowed despite being an inappropriate green belt development. The existing road to the Grade 11 listed Hawthorne Cottage on Ollerton is narrow and curving with poor visibility. The proposal was to block up the existing access an d provide a new access including a turning area, but would involve cutting down 7 trees. The enhanced visibility and improved ease of access was sufficient special circumstances.


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