Making a decision Q & A DCP Section 5.2

This section is concerned with the administrative processes whereby a final decision is made on planning applications by local authorities. Legal curbs and cases relating to procedures are dealt with here, but matters to do with more serious malpractice by members or officers are to be found at (6.33).

Q & A    5.2/10

My firm has paid a full planning fee for a housing development application. After consultation with the local authority to secure an acceptable scheme, the layout of the affordable units was redesigned and an access point removed. The authority now consider this a fresh application requiring a new fee. Is this reasonable?

Circular 31/92 only deals specifically with the scenario where a revised application is submitted after refusal or withdrawal but the general thrust of this advice would seem applicable to the case in point. Therefore if the application as revised is not materially different from that originally submitted in terms of character and description then a fresh application and new fee is not required. However determination of such a matter is for the discretion of the local authority in question, and as shown in R. v South Holland District Council ex parte Hey and Croft Ltd 20/12/1991 the courts are likely to be unwilling to intervene in any interpretation dispute unless there has been a clear abuse of power. It is, of course, open to you to appeal against the non-determination of your revised proposals which will inevitably occur if the local authority does not consider that a fee has been paid. It will be interesting to hear of the experience of others involved in similar argument with a local authority.

Do you know of any case law which entitles an applicant to withdraw an application after it has been to committee but before the council is able to issue the decision notice?

The courts have held that a decision on a planning application is not deemed to have been formally made until the issue of a decision letter R v West Oxfordshire District Council ex parte Pearce Homes Ltd  [1985].  It follows that the time between the resolution to approve or refuse a planning application and the despatch of the decision letter is the last chance to withdraw. I am aware that some LPAs date decision letters from the date of the council's resolution and not the actual date of issue, and it may be debated whether under these circumstances there is an intervening period when the application could be withdrawn.

Response

I have had an experience bearing on this issue which may be of interest. A refusal was issued by a local authority and the date on the decision notice was that of the committee meeting which was held at 8pm. I lodged an appeal against the refusal six months and one day later. After having been initially rejected by the Planning Inspectorate, the appeal was later accepted on the ground that the council could not have possibly have issued the decision notice on the date referred to by the notice, the earliest being the following day. On that basis the appeal was in time.

Planning permission has been granted for a large house and the development is proceeding in accord with the plans, the wall having reached head height. The developer now wishes to add a shallow bay window to the rear, which would be permitted development if construction were further advanced. An application has been submitted and it is believed that this should be related to the bay alone and not be treated as amended plans for the whole house.  The matter of the status of the application is important in this case as a local pressure group is seeking to get the whole permission reviewed. Can you advise?

I see no reason why this proposal for a bay should not be treated for what it is, namely an amendment to approved plans, and am unclear as to how it could be thought of as a device to overturn a development which has commenced in accord with a planning permission.

Can you advise me on previous case law relating to inaccurate descriptions provided by agents on application forms? A recent application gave the description as a single storey side extension. This was confirmed by the plans, which showed such an extension highlighted. The proposal was acceptable but once approved it was brought to the planning department’s attention that a dormer window was included on the opposite side of the property. As this was not included in the description or highlighted on the plans the case officer did not examine this side of the property. The decision notice granted permission for a single storey side extension only, but a condition was applied which indicated that the proposal should be built in accord with the approved plans. Can it be argued that the dormer, which allows considerable overlooking, has planning permission?

I cannot identify a close case precedent for this situation although court cases often cited in matters of conflict between case descriptions and plans are Slough Estates v Slough Corporation [1969] and Wivenhoe Part v Colchester Borough Council [1985]. It appears that apart from the decision notice itself, any interpretation as to what had been permitted should be based on a reasonable construction of the development description given in the application form, the content of associated plans and any other evidence as to the intention of the applicants or the assumptions of the local planning authority. In this particular case, it seems to me that taking all these factors into account, it should be possible for your authority to argue that it did not permit the dormer in question. It may be supportive if the registration of the case, and any correspondence from your planning authority, solely referred to the side extension and lacked reference to the dormer, and this was not queried by the applicant. Does any reader have an input to this interesting question?

Response

If a local planning authority requires separate drawings to show existing and proposed elevations and floor plans this can make such discrepancies more readily apparent.  The written description is normally a brief summary, rather than a comprehensive list of all proposed works.  In my experience, applicants or agents frequently include in their description works which do not require planning permission, although they do form part of the proposal e.g. internal alterations.  Others do not refer to all works requiring permission or are vague, for example ' addition to dwelling' where the proposal is for a 'single-storey side extension'.  Some authorities tend to use the applicant/agent's exact words, on the basis that it is not for them to alter the description.  Others will amend the description where this is required but will usually point this out to the applicant/agent, who then has a clear opportunity to challenge the change made.

If the 'additional' dormer was shown on even one part of the drawing, it places the authority in an awkward position.  It is for the authority to request whatever information or details it considers necessary to determine the application.  If the applicant can claim that the intention was clear and further drawings or clarification were not requested, then it could be argued that permission was granted.

This is an unusual situation but the same concerns arise in cases where building is to take place on or near to unstable land, as discussed in PPG14. These considerations are essentially whether there could be an unacceptable risk to the occupants of proposed development, and the users of adjoining land, if it is to be permitted. Therefore, in your case I have little doubt that the likelihood that problems may occur is a proper material consideration and the normal precautionary approach ought to adopted. However, as you say there is agreement on both sides that there is no risk, there would appear to be no basis upon which this development may be refused on this ground, and in these circumstances I cannot envisage that your council could be held liable for any future problems.

An appeal case of some relevance carefully considered the risk of material falling or being thrown onto the roof of a leisure building at the foot of a cliff in Hastings. It was concluded that to safeguard public safety a condition should require an annual assessment of the cliff face by a structural engineer together with a contemporaneous report on the integrity of the structure to withstand any identified hazard. A condition requiring actual works to the cliff face was rejected as contrary to Circular advice.

Our company has recently obtained planning permission for a recreational building for a client. However, for various reasons the design of the building is likely to be changed before its construction. Is there any guidance, advice or case law to define what might be considered a ‘minor amendment’ and thus not require a fresh planning application, or is this a matter for negotiation with the local authority?

Advice on minor amendments can be found in Circular 31/92 which says that the local planning authority will have to decide whether a proposed variation is "significant enough" to require a fresh planning application. This reflects Lord Denning’s judgement in Lever Finance Ltd v Westminster City Council 1970, where he held that it was a sensible practice for a planning officer to decide whether a variation from an approved plan was material or not. The materiality test is clearly one of fact and degree. Some departures from approved plans may be considered not to be development by reason of there being no material effect on the external appearance of the building, and thus not development by reason of sec.55(2)(a) of the 1990 Act. However, in such cases it may need to be confirmed that this has not been overridden by a condition of the planning permission requiring construction of the building strictly in accordance with the approved plans.

Is there any formal requirement for a LPA to undertake a site visit before determining a planning application? I have been advised by a LPA that there are occasions where it considers the information supplied with the application, together with its own local knowledge of house types, height, layout and pattern of development etc to be adequate. In such circumstances, it believes that a site visit would not add to the information necessary to make a decision. However, I am now dealing with an application where the case officer could have had no prior knowledge of the site, yet no visit has been made. What recourse, if any, would be open to my client?

Neither planning officers nor elected Members are under any statutory obligation to carry out a site inspection before deciding a planning application. However, in my experience it is both unusual and normally imprudent for a case officer not to visit a site before making a recommendation to Members or determining an application under delegated powers. Members will also often visit the sites of more important and controversial applications, usually as part of a smaller viewing panel, which reports to the responsible decision-making committee.

Local planning authorities may be vulnerable to challenges on appeal and, in particular, an award of costs on the grounds of unreasonable behaviour if they fail to take into account a material planning consideration that would have been evident had such an inspection taken place. Similarly, complaints to the Ombudsman may result in findings of maladministration or leave given for a judicial review of the decision. But, in itself, the failure to carry out a site inspection is not considered to be evidence of unreasonable behaviour, and this was made clear in a costs case determined by the Secretary of State in 1991.

A council has resolved to grant permission for our joint application subject to a Section 278 Agreement and meeting its legal costs. We are the landowner. The other applicant, who has no legal interest in the site but has been managing the application, is unhappy with the Council’s requirements and has walked away. The planning authority is now seeking written confirmation from them that we can proceed alone, but it is unlikely to get this. Does a joint application require both applicants to sign up to everything?

Naturally, it would normally be expected that joint applicants are treated as one. However, my understanding of Sec 278 of the Highways Act, as substituted by the New Roads and Streets Act 1991, is that it enables a Highway Authority to enter into an agreement with any person for the execution of works within the highway and for the making of related financial contributions. While I am not certain, I cannot see why you should be prevented from entering into such an agreement, regardless of the wishes of the co-applicant who, being neither a co-signatory nor landowner, would not be potentially liable in the event of its enforcement.

However, the co-applicant would of course be denied the opportunity for an appeal against the council’s demands. An alternative way forward might therefore be for you to re-submit the application as a sole applicant. The requirement to meet the council’s legal costs in making the agreement is specifically authorised by Subs 2 (a). It would be interesting to hear the views of others on this awkward issue.

Since 5 December 2003 planning authorities are required to give reasons for granting permission. The Town and Country Planning (General Development Procedure) (England) (Amendment) Order 2003 and the accompanying Circular 08/03 offer little guidance on what form these should take but stress that they should not add materially to workload. However, in my a brief statement saying that the proposal is in accordance with the development plan and that material planning considerations do not justify a contrary decision provides insufficient clarity. Have you any suggestions? DR

Article 5 of the amended Order requires planning authorities to include in the notice of decision granting planning permission a summary of the reasons and any development plan policies and proposals relevant to that decision. The latter need not be exhaustive, the circular advises, or refer to national planning policies and guidance. Moreover, the summary of reasons will depend on the application under consideration and authorities may find it helpful to base them on those given in the planning officer's report.

My experience as an Inspector with An Bord Pleanála (the Irish Planning Appeals Board) may be useful, as the Board operates under a similar duty. It would be interesting to hear readers’ thoughts on the following suggestion, adapted from its model reasons for grant, which stress the positive aspects of the development and may be modified according to circumstances:

‘Having regard to the pattern of existing development in the area and relevant provisions of the development plan, as summarised below [or in the attached annex], it is considered that subject to compliance with the conditions attached to this permission, the proposed development would be in accordance with the development plan, would not materially harm the character or appearance of the area or the living conditions of neighbouring occupiers, and would be acceptable in terms of traffic safety and convenience [or whatever material consideration should be included]’.

Is a planning officer entitled to reverse a recommendation to members after a written report has been published, or for members to reverse a decision once it has been taken?

Once a written report has been published, there would normally need to be some material change in circumstances to justify a planning officer fundamentally altering their position on a proposed development. This could include the receipt of late information or a relevant appeal decision.

At an appeal hearing at which I appeared some years ago, a chief planning officer argued that his department’s favourable written recommendation had been wrong. I thought this about-turn was unreasonable and applied for costs against the council. In refusing this, the inspector held that while it was unfortunate for a department to change its position on which it was otherwise reasonable to assume some dependence and support, it was not unreasonable for an officer, having heard the views of his committee or having considered the matter further, to behave in this way.

A court case showing that a reversal of a decision made by members is not necessarily unreasonable is R. v Aylesbury Vale D.C. & Another, ex parte Chaplin & Others [1996], a judgement that was upheld by the Court of Appeal in 1997. Here it was held that there was no reason why a planning committee should not change its mind following new evidence based on a site visit and legal advice as to the prospects on appeal.

A reader enquired about lobbying Members to gain support for his client’s application. In an ombudsman case from 2003, councillors were criticised for being unduly influenced by the lobbying of a developer and of being the "author of its own misfortune" in the way in which an application had been handled. The case highlights the possible pitfalls faced by Members when confronted by a determined applicant promoting a development that did not enjoy support from their officers.

At committee, Members decided to delegate to officers the grant of permission for an application of mine, subject to amended roof details. My argument against this amendment was accepted by officers and the application went back to the next meeting with a recommendation that it be passed as it stood. The officers’ report stated that the roof design was the only issue to be considered, as a decision had already been made. However, at the subsequent meeting other issues were raised that had already been debated and won at the first one. A senior officer advised the committee that they had the right to make a decision on the whole application, in spite of the previous decision. As it happened, the committee voted for approval again but, bearing in mind that my representation at the meeting only covered roof issues, was this procedure correct?

While there is no specific guidance on this, the oral advice apparently given by the senior officer to Members is right, in my view. In R. v Yeovil Corporation ex parte Trustees of Elim Pentecostal Church, Yeovil [1971], the courts held that it was the notification rather than any resolution by Members that constituted a grant of permission. In that case, no permission had been granted when the authority had resolved to grant this subject to an officer being satisfied with car parking arrangements. This general approach was later upheld in R. v West Oxfordshire DC ex parte Pearce (C.H.) Homes [1986]. Thus even if decision-making has already been delegated to an officer, a planning committee can recover jurisdiction if a formal notice has not been sent out. The scope for such reconsideration was highlighted by the judgement in R (Kides) v South Cambridgeshire DC [2002]. Here the court of appeal upheld a judge's ruling that, following a very lengthy delay between a planning authority's decision in principle to grant planning permission and it actually issuing the decision notice, it should have considered material changes in circumstances that had arisen during the intervening period, such as new government policies.

While these cases are not directly comparable to the situation you describe, the substantive point seems to be that until a decision notice has been issued, a planning authority is at liberty to reassess completely the merits of an application, notwithstanding any apparent inconsistencies in its decision-making.

Can a planning authority accept the withdrawal of an application prior to a decision notice being issued on the day after it had been refused, in this instance against officer advice?

While it understandable why an authority might feel aggrieved and wish to resist such action, in Co-operative Retail Services Ltd v Taff-Ely BC [1978], as later confirmed in R. v West Oxfordshire DC Ex p. Pearce (C.H.) Homes [1986], the courts held that a decision of a local authority relating to a planning application is not valid until it is conveyed to an applicant in a formal document. As a resolution to refuse an application does not constitute written notification, applications may be withdrawn before the issue of a decision notice.

I was told by a planning authority that my client’s application to extend a house had been refused. However, I later received a decision notice granting permission for the development and a copy of the submitted plans, stamped ‘approved’. Under the heading 'Conditions' is a paragraph which was obviously meant to be the reason for refusing the application. Otherwise, the decision notice appears to be a permission and has been signed by the Head of Planning. Is my client entitled to construe this document as a planning permission?

I can find no legal precedent for this unusual situation. The general principle is that a planning permission should be interpreted from the decision notice itself, without reference to extrinsic matters. However, the courts have held that that are exceptions, including where the wording of a permission is ambiguous or in certain circumstances where its validity is challenged. In the light of the apparently contradictory nature of the notice you have received, an examination of the application’s ‘evidential matrix’, including any resolution by Members is clearly necessary to establish the intended outcome. That might confirm that the Head of Planning had no authority to issue the permission or that proper decision-making procedures were not followed Consequently, until these matters have been clarified, it would not be prudent to assume that the document confers any right to build the extension. You should therefore discuss this with the planning authority.

Response

In a recently reported case on a similar issue (Planning, 19 August 2005, p18 - DCS No: 10003817), an inspector apparently took a different view and allowed an applicant to take advantage of the authority’s mistake on the grounds that it had no powers to issue a revised decision notice. Surely this is ridiculous and flies in the face of what I thought was the established principle that a valid decision stands on two legs and falls if one leg is absent. The first leg is a minute showing that the decision was made by a duly empowered committee or officer. The second leg is the decision notice. In the recent appeal case, the first leg is presumably missing and thus the erroneous decision notice is invalid, since it is not based on a decision made by any duly empowered body. The planning authority realised its mistake and sent out a corrected decision notice. In my opinion, the appellants’ rights are limited to compensation for any extra costs incurred during the interval between the two decision notices if they can show that they were truly misled by the notice, despite it clearly setting out the reasons why the authority considered that the development was unacceptable. What is your opinion?

The courts have held that it is the actual notification in writing to the applicant that constitutes the grant of permission rather than any resolution of the authority. In the case to which you refer, the planning authority and the inspector agreed that the authority had no powers to issue the second notice. This seems to be supported by the judgment in Fisher v Wychavon District Council [2000]. Instead, the authority argued that the original decision notice was a nullity due to its mistake. As such, in accordance with Slough Borough Council v Secretary of State for the Environment and Oury [1995], it maintained that one was entitled to go behind the wording of the purported grant. However, the inspector held that since that case concerned the submission of details pursuant to an outline permission and the relationship of the terms of the application to the decision, it was not relevant. It is true that the courts have ruled that if the validity of a planning permission is challenged on the grounds of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue. In this case, however, the inspector found no documentary evidence to support the authority's claims that it had intended to refuse the application. On that basis, he held that the appropriate course of action would have been to consider revoking the decision. Although on the face of it this is a somewhat harsh decision, I do not think that the inspector erred in law.

My authority has an application for a two-year temporary permission for a residential caravan in the green belt, which the agent argues should be approved, as the site is close to a village envelope proposed in the emerging unitary development plan (UDP) and the inquiry inspector might recommend its extension to include the site. I think this is very unlikely and that the development plan inquiry process does not constitute very special circumstances sufficient to outweigh the presumption against inappropriate development. At the committee meeting, five Members declared a conflict of interest, as they sit on the UDP working party, leaving only two who were unable to reach a decision. With no prospect of a decision, the agent has withdrawn the application, but proposes to resubmit it shortly. To avoid this situation being repeated, it has been suggested that a neighbouring planning authority could be asked to determine the application. Are you aware of any cases where this has happened or any provision within the Acts for this?  If not, what is the suggested procedure?

I cannot find a precedent for this type of situation. In my view, the failure of the council to determine such an uncontroversial and minor application for the reasons you state represents an abrogation of its statutory duties. There is no provision within planning legislation that would enable an authority to determine an application that falls within a neighbouring authority’s jurisdiction. I fail to understand why it should be considered that the discretion of Members considering the application is fettered by their membership of a development plan working party. The proper course of action here would be to report the application to any larger, parent committee, to a meeting of the full council, or to a specially constituted panel of Members with no perceived conflicts of interest. But from what you say, I agree that there appear to be no very special circumstances in favour of the application. It should therefore be refused as being premature pending the outcome of the UDP process.

Is it lawful or good practice for planning authorities to issue split decisions on planning applications? Sec 70 of the 1990 Town and Country Planning Act says that authorities may either grant permission with or without conditions, or refuse permission. But this appears quite different from Sec 79 which enables the Secretary of State or inspectors to allow or dismiss an appeal, or reverse or vary any part of the decision of the local planning authority. Would it therefore not be more in the spirit of the Act to invite the withdrawal of the contentious part of the development proposal prior to a decision or, failing that, either refuse it entirely or condition out the unacceptable element?

Sec 79(1)(a) gives the Secretary of State the general power to issue a split decision and this was supported by the judgement in Glacier Metal Co. Ltd v SoS & Hillingdon L.B [1975]. But while it is common practice for the inspectorate to issue split decisions this is only possible where the proposed development is clearly divisible into two distinct elements. Such severability may not only be on a physical basis but can include uses proposed on the same land at different times. The legal justification for planning authorities issuing split decisions appears less certain. However, in Kent County Council v Secretary of State& Burmah-Total Refineries Trust Ltd.[1976] it was held that a planning authority may grant a lesser planning permission than that applied for, but it would normally be right to enquire first whether the applicant wished to make any representations on such a decision. In addition, the issuing of split decisions on applications for express consent to display advertisements is accepted practice under powers given in the Town and Country Planning (Control of Advertisements) Regulations 1992. Your suggestion that conditions could be used to exclude unacceptable elements of a scheme would appear to conflict with the advice of paragraph 84 of Circular 11/95. This states that a condition modifying development cannot be imposed if it would make the development substantially different from that proposed by the applicant.

Following an application’s withdrawal or refusal, a planning authority refuses to accept more than one free resubmission by the same applicant for the same site and development.  It contends that the Fees Regulations provide only for one "free-go", whatever the circumstances. Is it right?

The planning authority’s approach appears correct. The effect of regulation 8(2)(f) of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 is that in such circumstances an applicant is only entitled to one free re-submission.

Response

-You are quite correct. The regulations stipulate an earlier starting date for the 12 month period following an application that has been withdrawn than for one that has been refused, where the period runs from the date of the decision. The reason for this difference is unclear.

-While applicants are only entitled to one 'free go' following the withdrawal or refusal of an application, they may subsequently benefit from another 'free go' under Regulation 7 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 if a further application is submitted following a grant of permission. I have had a complaint to the Ombudsman upheld when a planning authority refused to register an application in these circumstances.

- A planning authority I deal with refuses to accept any ‘free-go’ once a property has previously enjoyed a free-go, no matter what the description of the proposed development. For example, permission is refused for a domestic extension in 1990 and the free-go is used that same year for a revised proposal. Then in 2004 permission for two houses on the same site is refused but the resubmission is not accepted by the authority as a free go because this was ‘used up’ in 1990.  Surely this cannot be correct?

A literal reading of regulation 8(2)(f) of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 suggests that the planning authority’s approach would be correct only if all the applications were made by the same applicant. But if the applications in 2004 were made by a different applicant from that in 1990 and the other conditions of regulation 8 are met, I think the planning authority would be in the wrong.

The planning committee of my council recently resolved to approve an application subject to several conditions. However, the subsequent decision notice failed to include three conditions added by Members. Officers therefore decided to issue a new notice correcting this error. A third party has challenged the authority’s right to do this and argues that it should be for the courts to quash the original notice. Officers believe that as they had no power to alter the committee's decision, the first notice is null and void and that the proper, reasonable and lawful course of action is to issue the new notice. As the applicant is the District Council, it has no objection to this. What are your views?

While the Planning and Compensation Act 2004 confers new powers for the secretary of state and inspectors to correct errors in their decisions, there is apparently no equivalent provision in planning legislation for authorities to rectify similar mistakes. However, where a decision notice has been issued in error or the validity of a permission is challenged, the courts have taken a pragmatic approach and looked behind the notice at the background to the decision and the authority for its issue. In addition, in a case from Wrexham Maelor in 1994, the secretary of state turned away an appeal for reserved matters approval pursuant to an outline permission that had been issued in error before a planning agreement had been completed. It was held that the chief planning officer had no authority to issue the permission in these circumstances. I therefore agree that the original decision notice you mention is invalid.

In R. v. Arun District Council, ex parte Fowler [1997], the High Court held that it was lawful for a planning authority to issue a replacement certificate of lawfulness as it had not changed the nature or effect of the decision. The defect was capable of being cured, as it had been, without the intervention of the court. Overall, therefore, I think there are good grounds for arguing that your authority would be within its rights to issue a replacement notice that correctly conveys the decision made by Members.

Outline permission was granted for a revised proposal which had required no new fee as it was made 8 months after the refusal of a similar application. Afterwards, the same applicant submitted an application for the approval of the reserved matters, with a new fee, but this was refused. Some three months later, he has now submitted a revised application without a fee. My authority argues that as the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 provides for only one free go per site per applicant a new fee is payable. Is it right?

Regulation 8(2)(f) stipulates that that no application made by or on behalf of the same applicant in relation to the whole or any part of the site which has already been exempted from the requirement under regulation 3 to pay a fee is entitled to a free resubmission. Your authority’s approach is therefore correct.

Response

I disagree with this interpretation as it seems to be based on a reading of that part of regulation 8(2) in isolation from the rest of the regulation. Reliance has been placed on the words in regulation 8(2)(f) that it applies if "the site has already been exempted from regulation 3 by this regulation". But any exemption can only last twelve months following a refusal of planning permission under regulation 8(2)(a). Accordingly, the scope of regulation 8(2)(f) is limited to a twelve month period following refusal. The purpose of regulation 8(2)(f) is to prevent an applicant having more than one free go within the twelve month period following the date of refusal of an application for development of the same character or description for which he has paid a fee. It is not intended to have any effect beyond the twelve month period. For example, if an applicant submitted an application with a fee two years after a refusal of a free go application for similar development on the same site and that new application was also refused, then clearly the applicant would be entitled to a free go within the following twelve months. VS

A development permitted by my authority has not been built in accordance with the approved plans. The new building occupies a previously undeveloped site between two other buildings and an important consideration had been its height in relation to its neighbours. In response to a question on the application form the applicant had confirmed that the submitted plans showed accurately all development on adjoining land in relation to the proposal. However, the substantially completed development is at least 0.5m higher than approved and there are other minor differences. The applicant has declined to submit a fresh application, arguing that the approved plans detailed the adjoining buildings 'for illustrative purposes only'. But because of this misleading information, could the application be invalid and the permission a nullity?

There are two issues here. The first is whether the permission is invalid and second, if it is not, whether the variation from the approved plans in terms of what has actually been built is de minimis or, in accordance with the advice of Circular 31/92, would be "significant enough" to require a new permission. With regard to the first issue, in an enforcement case from Cornwall in 1983 an inspector held that a decision to approve details based on inaccurate block plans was a nullity. However in other circumstances it has been judged that errors in plans were not so great as to invalidate a permission. Clearly the scale and effect of such discrepancies must be assessed on a case by case basis.

Although it is difficult to comment on your case, in many instances I do not think that a discrepancy of 0.5m would be material, particularly if the applicant’s drawings were marked with the common disclaimer saying "do not scale". However, in a recent enforcement appeal case from south London an inspector noted that a house had been built  0.07m wider, 0.06m deeper and 0.1 m higher to the eaves (DCS No: 34614183). He noted alleged problems with scaling and printing and so forth but was not convinced that this excused the deviations. The inspector felt that cumulatively they were material and the house as built was in breach of planning control. The notice was upheld requiring the building to be altered to remedy the harm done.

Recent guidance from the ODPM states that the start date for calculating the prescribed periods for determining applications should be the day after receipt, therefore extending these by one day. This appears to conflict with the provisions of Article 20(2)(a) of the General Development Procedure Order, which deals with the eight-week period and takes the day of the application’s receipt as the start date. Is the ODPM's guidance legal and what is the situation if an applicant appeals against non-determination on the last day of the ‘extended’ period?

Best Practice Guidance on the Validation of Planning Applications, issued by the ODPM in March, advises that "the first day an application is received counts as day zero". As you say, this conflicts with the statutory requirements of the development order. Although the introduction to the ODPM document makes clear that the guidance is based on the existing Order, this also states that the new guidance has been issued in advance of changes to the development control system and that the government intends to amend the Order during 2005. Whether this is one of the changes it has in mind, is unclear. However, government guidance cannot override primary or subordinate legislation. Therefore the provisions of the current Order must take precedence. Similarly, the guidance cannot alter an applicant’s right of appeal, which in the case of an appeal against non-determination is set out at Section 78 (2) of the Town and Country Planning Act 1990. This refers to "such period as may be prescribed by the development order or within such extended period as may at any time be agreed upon in writing between the applicant and the authority". Thus unless an applicant agrees to the prescribed period being extended by one day, in my view an appeal lodged on that day would be valid. But in the light of the new provisions on "dual jurisdiction" for such appeals, this may be of little practical consequence.

A site has outline permission for a 2000 sq m retail development. On part of the site full permission was previously granted for 500 sq m of retail use. Both permissions are extant and no development has started. There are no "mutual exclusion" conditions and the outline permission does not specify where on the site the development must be carried out. The local authority says there is a "planning unit" issue and the developer must choose which permission to implement. However, my client wants to implement both permissions and build a total of 2500 sq m, which the site can in fact physically accommodate. Once work starts on the original scheme, is there any basis on which the authority could in principle refuse reserved matters approval to build 2000 sq m on the remainder of the site?

The leading case on the lawfulness of implementing multiple permissions is Pilkington v SoSE [1973]. In the absence of any condition or planning obligation to render the first permission unimplementable, the relevant test in this case is whether, having implemented that permission, it remains physically possible to carry out the development authorised by the outline permission in accordance with its terms. Such a scenario was considered in Orbit Development (Southern) Ltd v SoS & Another [1996] where outline permission had existed for five dwellings. Permission was later granted for a B1 building on part of the site, which was then constructed. An application for reserved matters approval for the five houses was made but on smaller plots. At appeal, an inspector felt that the details were so different from those illustrated at the time of the outline permission, that they were a material departure. The revised proposal was also harmful. The court upheld the inspector's decision as a matter of correct professional judgment with which it could not interfere. But in this case, if there was no illustrative scheme or indication of where the retail development would be sited, and it would be possible to build the amount of retail floorspace envisaged in the outline permission on the remainder of the site, I think it would be difficult for the authority to resist the reserved matters application.

My client had his planning application for a dormer refused. I now intend to apply for a certificate of lawfulness (LDC) for the same development but involving demolition of a garage within 5 m which will make the dormer 'permitted development'. As this LDC application will be made within 12 months of the decision on his last application, albeit for permission, would he have to pay a new fee? It would seem unreasonable for a further fee to be payable and my review of the circulars and legislation is not conclusive. Clearly ‘free goes’ are allowed, but does this cut across different application types?

Regulation 10A of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 does not stipulate that in order for an application for an LDC to qualify for any exemption it should follow one that was also previously made under section 191 or 192 of the 1990 Act. However, the regulation requires, among other things, that the planning authority be satisfied that the new application "relates to a use, operation or other matter of the same description as the use, operation or matter to which the earlier application related and to no other use, operation or matter". The emphasis therefore seems to be on the nature of the proposed development rather than that of the application. But this ambiguity is not present in regulation 8, which provides that in the case of other applications, the exempted application must be the same as that refused. On balance, therefore, while I agree that the matter is debatable, I do not think that it was intended that the opportunity for "free goes" should cut across different application types. Readers’ views are invited.

A planning committee recently resolved to approve an application for a farmhouse, as a replacement for a temporary mobile home, against officers’ advice. The authority has a policy of deferring applications which the committee has resolved to approve to a second meeting, ostensibly to give officers time to frame suitable conditions. But at that meeting, the proposal was debated all over again and only approved on a majority vote. Following this, the council’s solicitor advised that as the application was contrary to adopted policies it would have to be advertised as a departure and that the resolution to approve was in fact to be a delegated approval, subject to there being no subsequent objections following the advertisement in another four weeks' time. I argued that as the authority has policies to allow agricultural dwellings, the application was not a departure, but to no avail. The process has added at least twelve weeks to the determination process and obviously is causing the applicant considerable distress and anxiety. What are your views on the authority’s policy of referring back applications where the committee resolves contrary to the recommendation, so that the debate is re-opened, and also the decision that it should be advertised retrospectively as a departure?

There are no nationally set committee procedures for the determination of applications by members and practice will therefore vary from authority to authority. However, the courts have held that an application has not been determined until notice of the decision is conveyed in writing to the applicant. Until this happens, the planning authority is free to re-open consideration of the application and, where necessary, reverse a previous resolution. But, in that event, it would be expected to show good reasons for having reached a different conclusion. On the face of it, the procedures followed in this case do seem vexatious, although where members resolve to overturn a recommendation for refusal there is often merit in deferring the application to a later committee in order for conditions to be drafted. The authority has discretion in determining whether the proposed development would constitute a departure from the development plan and when it should be advertised as such, and is unable to grant permission until it has complied with these procedures. However, it is questionable whether the procedures followed in this case are consistent with the government’s targets for the expeditious processing of applications.

I recently appealed against the failure of a planning authority to determine an application that had been originally recommended for approval but then withdrawn by officers from the agenda for a committee meeting. The authority subsequently resolved to oppose the application on the grounds of its impact on neighbouring residential amenity from noise and disturbance caused by motor vehicles. This was despite the fact that I had been told that no such objection had been raised by the council’s environmental health officer (EHO) and this had not been mentioned in a report to members on the putative reason for refusal. When I received the appeal questionnaire, the consultation responses from both the EHO and the Highway Engineer were absent. The latter was only furnished 4 weeks before the hearing. However, the EHO’s report was removed from the application file and my request under the Freedom of Information Act to inspect the report was rejected as not being in the public interest.  Can a planning authority deny access to such a background document for these reasons?

There is no justification for withholding access to such a document. It forms a background paper within the meaning of the Local Government Act 1972, as amended by the Local Government (Access to Information) Act 1985. It is an offence to intentionally obstruct the exercise of the rights conferred by the act, which have been reinforced recently by the Freedom of Information Act 2000. With some exceptions, this gives a statutory right of access to all information held by a local authority. The comments of the EHO would not fall within any of categories of restricted or confidential information that is exempt from the general right to public access. Following the planning authority’s refusal to allow you to inspect the report, you should have complained to the Information Commissioner. In addition, you could have raised the matter at the hearing and, if necessary, applied for costs against the authority on the grounds of its failure to comply with procedural requirements for planning appeals or to substantiate its reason for refusal.

Response

I am delighted to say we won our planning appeal and were awarded partial costs in respect of the noise issue.  At the hearing the authority refused to furnish even the inspector with a copy of the environmental health officer’s views and was criticised by the inspector for its less than transparent handling of the matter. I have subsequently made a complaint to the ombudsman and have submitted your comments as additional information.

Procedural requirements are silent on the need for a planning authority to specify in its notice of decision to grant an outline permission any policies that have superseded those in the development plan, such as those set out in PPS1, PPG3 and PPG13 on sustainability and spatial planning issues, which are now as central to a determination on the principle of a proposed development as are traditional land use considerations. Is this deliberate, and if so why, or is it that an appropriate amendment to the regulations has yet to be made? In addition, should such site location and sustainability issues be considered at the outline stage or reserved for consideration at the subsequent detailed stage?

Article 22 of the Town and Country Planning (General Development Procedure) (England) Order, as amended, requires that when an authority grants permission or approval of reserved matters the decision notice shall include a summary of its reasons for the grant and a summary of the policies and proposals in the development plan which are relevant to the decision. A similar duty applies where conditions are attached to the permission or an application is refused. As you say, there is no express requirement to refer to relevant national policies although these would clearly fall under the general heading of "reasons for grant" and it would be reasonable for these to be mentioned. The need for reasons to be given when an application has been approved was identified by the government in its Planning Green Paper of 2001. I can find no discussion on any requirement to specifically identify national guidance and this is not a matter that is included within the government’s proposed changes to the development control system. However, the need to refer to local planning policies undoubtedly stems from the primacy given to the development plan by statute, which does not extend to national guidance. Matters of sustainability clearly go the heart of whether a development is acceptable in principle and it follows that they must be considered at the outline stage in the process.

I am seeking clarification on fees payable for resubmitted applications following a decision to either permit or refuse a proposed development. My previous authority interpreted the legislation to mean that only one 'free go' per application was allowed so long as it was made by the same applicant within 12 months of the decision and for the same form of development on the same site. My current authority allows only one free go per applicant per site. What is your view?

This matter has been debated before. The correct position is that regulation 8(2)(f) of the Town and Country Planning (Fees For Applications And Deemed Applications) Regulations 1989 provides for only one free go within the twelve month period following the date of a grant or refusal of permission for an application for a development of the same character or description for which an applicant has paid a fee, but has no effect beyond the twelve month period. Thus an applicant is not for ever debarred from claiming a free resubmission where successive applications are made on the same site beyond the twelve month period, provided the other conditions are met.

Response

My authority recently sought clarification of this matter from the ODPM. It advised: "The regulations say that there can only be one free application, per applicant, per site. They do not limit the period to which this qualification extends. The only qualifying time is referred to in 7(2)(a) and 8(2)(a). Nor do they differentiate between different types of application. My understanding is therefore the same as yours in that there can only be one free go, per applicant, per site. Interpretation of the regulations is however, in the first instance, for yourselves as the local planning authority and ultimately for the courts." This is contrary to your advice. However harsh, I believe it to be correct.

My authority does not accept your interpretation. Circular 31/92 explains that the applicant may benefit from the exemption only once for any given site and even if the exempt application relates to only part of that site, no subsequent applications can be exempt. It adds that where any applicant needs to submit a third or subsequent revised application, the full fee is payable and apart from revisions to schemes to include small amounts of additional land to accommodate revised access arrangements, it says that in no other circumstances will revisions which include additional land be eligible for exemption from fees. I therefore think it is highly unlikely that it was ever the intention of the author of the regulations to limit the bar to the 12 month period and far more likely instead that it is was meant to say exactly what it says.

My advice was based on a legal opinion given in response to a previous discussion of this matter. In brief, this stated that regulation 8(2)(f) must be read in conjunction with regulation 8(2)(a), which provides that any exemption can only last twelve months following a refusal of planning permission. The scope of regulation 8(2)(f) is therefore limited to that period, it was argued, its purpose being to prevent an applicant having more than one free go within the 12 month period. Another reader referred to a case where the Ombudsman had found against a planning authority for misinterpreting the regulations and denying free goes for successive resubmissions following permission. However, as the ODPM points out, this is ultimately for the courts to adjudicate on.

My client has received a properly signed and dated decision notice that states that permission has been granted. Unfortunately, the section headed "conditions and reasons" includes two statements that appear to be reasons for refusal. What is the legal status of the notice?

This issue was considered in a decision from Kent last year (DCS No: 100038107) that was the subject of a query. The case concerned an enforcement notice that followed an erroneous decision notice that was signed, issued and headed "Notification of grant of permission to develop land". The notification stated that "the council has granted permission for the development subject to the following conditions". However, the conditions quoted were clearly the intended reasons for refusal. In quashing the enforcement notice, the inspector held that while the decision notice was contradictory because it contained reasons for refusal rather than conditions, on its face it was a planning permission. He noted that planning authorities have no powers to issue a corrected notice and advised that the appropriate course of action was for the council to consider either revoking the permission before the development was complete or discontinuance action under Sec. 102 of the 1990 Act. I do not know whether this decision has been challenged in the High Court. However, the approach taken suggests that your client may have a valid permission.

Response

My council was responsible for issuing the incorrect decision notice (DCS No: 10003817). Having taken counsel’s advice, my authority now accepts that the notice constituted a valid permission and will not therefore be challenging the inspector's decision in the High Court. Instead, it has resolved to pursue the matter by issuing a discontinuance notice.

My client recently obtained full permission for a mixed-use development that includes some affordable housing. He now wants to alter the scheme slightly to enhance acoustic separation between the ground and upper floors. Although the building envelope will remain the same, its fenestration will change. The authority says a fresh application is needed and that new, more stringent rules on affordable homes will apply. This seems unfair. Surely my client can deal with this as an amendment to his permission?

If the proposed variation in the fenestration would have a material effect on the external appearance of the building, this will involve development in accordance with Sec. 55(2)(a) of the Town and Country Planning Act 1990. However, it does not automatically follow that a further permission will be required because planning officers have discretion in such matters. Advice on minor amendments in Circular 31/92 is that the authority must decide whether a proposed variation is "significant enough" to require a fresh application. Much will depend on the nature of the surrounding area, the extent to which the design and appearance of the building was an issue during the consideration of the development and whether this was revised following negotiations. Ultimately, this is a matter of professional judgment. Where a fresh application is deemed necessary, the authority would be entitled to reconsider all relevant issues, including revised requirements for affordable housing. However, the fallback position established by the existing permission may render it very difficult for the authority to seek to secure these.

Response

In Henry Boot Homes Ltd v Bassetlaw District Council [2002], the Court of Appeal held that "the scope for such variation or discharge to be achieved by some other non-statutory method bypassing the statutory safeguards for the public" - without making an application under Sec. 73 of the Town and Country Planning Act 1990 – "must be extremely limited". However, the court failed to give any examples of those "extremely limited" circumstances. By going down the minor amendment route developers risk whole schemes being unlawful for failing to comply with a condition.

My authority is considering whether to accept minor amendments at all. Paragraph 29 of Circular 11/95 draws attention to the case of Handoll and Others v Warner Goodman and Streat and Others [1995], where it was held that planning conditions were not enforceable because it was not the approved scheme that had been implemented but a variation. Other cases casting doubt on amendments' status were reported some time ago. It has been our practice to accept variations to avoid being bureaucratic. However, to protect third parties and realise benefits achieved by condition or planning agreement, should my authority stop accepting amendments in any case where it would be unacceptable to lose the ability to enforce these? If, for example, the amendment comprised an additional window that would be unacceptable unless fitted with obscure glass, presumably the authority could not require this because it could not impose a condition?

I do not think the Henry Boot judgment mentioned is relevant, since it concerned the question of whether there is any non-statutory means by which the need to comply with a condition could be waived. These circumstances do not arise in the query. Neither is there any reason, in my view, to see Handoll as ruling out minor amendments expressly authorised by the planning authority, since that case considered a completed dwelling that varied materially from the terms of what had been approved by the authority. The planning world has moved on since Lord Denning's support for the practice in Lever Finance Ltd v Westminster City Council [1970] and in general a cautious approach is now required. The key rests with a careful assessment of what is "material". There may be instances where there is no third party interest in a development and a proposed variation is so insubstantial that to require a fresh application would be wasteful. Authorities should ensure that officers have unambiguous delegated powers for dealing with such eventualities. While conditions cannot be imposed on any minor amendments approved under such powers, it may be possible to avoid the need for these by ensuring that the matter of concern is adequately detailed on the revised drawings. But where that is not possible, authorities should not approve minor amendments.

My clients live in a dwelling converted from a listed barn in the open countryside. The area edged red on the plan accompanying the original permission granted in the 1980s includes the area immediately surrounding the barn and a larger adjoining area. Subsequent applications for extensions and the removal of conditions also include the larger area within the red line. The planning authority recently objected to an application by another agent for some new outbuildings, in which the area immediately surrounding the barn is shown edged red, with the larger area edged in blue, partly because the residential curtilage would encroach into open countryside. I believe the original permission authorised the use of the larger area of land as residential curtilage, since which time it has been mown and used as if it were a private garden area. Do you agree that the authority’s objection is unjustified?

It is reasonable to conclude that the inclusion of the larger area of land within the red line that outlined the original application site authorised its use as the curtilage to the new dwelling. It is then necessary to consider whether that lawful use was subsequently abandoned through the creation of a separate planning unit, bearing in mind the implication in this case that the larger area was excluded from the recent application site because it is divided from the rest of the curtilage. From what you say, however, the land has continued to be used for domestic garden purposes in association with the converted barn. In any event, the subdivision of a residential curtilage into different areas does not necessarily mean that separate planning units have been created. This was confirmed in a decision earlier this year (DCS No: 100040725) in which an inspector held that a paddock that was divided from an ornamental garden comprised part of a residential curtilage because the land had always been associated with the dwelling. The planning authority’s objections appear to be unjustified.

A local authority claims that no matter how material and relevant representations made by "unqualified persons" on applications may be, such as those from members of the local community, they can never attract the same weight as those made by a statutory consultee or an "expert" such as a planning consultant. This seems to make it pointless for third parties to submit representations in cases where views are given by officials and experts. The General Development Procedure Order (GDPO) 1995 does not indicate that some representations could be more equal than others. Is the authority’s approach supported elsewhere by legislation or case law?.

There is nothing in planning law or guidance that supports such an approach. Article 19 of the Order requires an authority, when determining an application, to take into account any representations received in the consultation period. For these to carry weight, they must relate to material considerations. General advice is set out in the companion guide to PPS1. The courts have held that the weight to be given to a material consideration is entirely for the decision-maker. However, it is clearly unreasonable to assume that simply because a view has been expressed by an official or so-called expert, it should outweigh those expressed by others. The test must always be whether representations can be substantiated by relevant planning reasons. In an unidentified 1979 court judgment quoted in a decision from London in 1989, a judge opined: "I see no reason whatsoever why the inspector should not, if he thinks fit, give weight to the views of individual local residents, even if these are directly opposed to those of a planning expert". He added: "It would be a very sad day for the rights of the individual if it could be said that the unanimous strong wishes of residents in the locality must almost inevitably be overruled if one or two planning experts disagree with them." I concur with this view.

In two recent enforcement investigations, measurements revealed that developments were built in accordance with the approved drawings. However, adjoining buildings, in one instance an eight-storey office block, had been misrepresented on the approved elevations to make them appear smaller and reduce the apparent impact of the proposed development. Although my authority has been forced to concede that there has been no breach of planning control, it may still be subject to scrutiny by the ombudsman. Site visits could not have detected this misrepresentation because detailed measurement of the adjoining building would have been required. The authority would like to place responsibility for verifying accuracy squarely on the applicant but can think of no foolproof way of doing so. What is your advice?

As discussed in 6.28, planning authorities must be vigilant about inaccurate drawings. They should check all submitted plans against up-to-date Ordnance Survey maps and establish the correct relationship and height of adjoining buildings during site inspections. This should reveal any major discrepancies. They should also make sure that disclaimers on application drawings saying "do not scale" are removed because this could undermine later enforcement proceedings. Full consultation procedures, including with the local community, should help to ensure that significant errors are picked up at application stage. Regulation 4(b) of the Town and Country Planning (Applications) Regulations 1988 enables authorities to direct an applicant in writing to "provide one of their officers with any evidence in respect of the application as is reasonable for them to call for to verify any particulars of information given to them". So authorities could seek confirmation from an applicant that the height of adjoining buildings is accurately shown on the submitted drawings. At present, councils are able to prescribe the contents of their own application forms. These could require an applicant to sign a declaration to verify that all the particulars in the application are correct. However, this is not something that seems likely to be included in the standard application form that the Government is expected to introduce soon. In any event, it is arguable whether such a declaration would ultimately serve any practical purpose.

Permission was refused for two residential caravans in a small yard because the planning authority feared that it would be difficult to stop further caravans using the site and these would cause traffic problems. Can an authority refuse permission for something that has not even been applied for on the basis that adverse effects might result from an intensification of a proposed use, even though no problems are caused by the actual development? Could it not have restricted the number of caravans by condition or considered the use of enforcement powers? Is there any case law that supports the authority's position?

Planning authorities are entitled to consider the precedent that would be set by granting permission but must also assess whether any unacceptable effects or intensification in use could be controlled by condition. In Lowrie v Secretary of State for Scotland [1988], the court upheld a reporter’s decision to refuse permission for a development because it would make it difficult to resist future harmful development even though it would in itself be innocuous. However, the courts have held that where such an approach is taken, mere fear and generalised concern is not enough. There must be evidence that permission would lead to an accumulation of harm. As you point out, in your case it might well have been possible to limit the effects of the development and the consequences for traffic generation by restricting the number of caravans to those for which permission had been sought.

Residents were notified that "dormer bungalows" were proposed to be built behind their properties. Unfortunately, they did not inspect the drawings and assumed that the dwellings would be the same as others nearby, which they considered acceptable. Subsequently, one property was built as a house with first-floor windows set partly into the wall and roof. It directly overlooks a neighbouring kitchen, living room and back garden. In order to lessen the windows’ impact, we have asked the authority to insist that they are fitted with obscure glass and kept closed. While the authority still considers that the dwelling is a bungalow, it accepts that it has made a mistake. What can be done to reduce the damage?

Assuming that the house was built in accordance with the approved plans, this is a salutary lesson that residents should not rely on descriptions given in consultation letters or site notice or on oral assurances offered by applicants. Third parties should always inspect applications for themselves. It is now almost certainly too late for residents to seek a judicial review of the decision. Moreover, because the dwelling is complete, the option of revoking the permission is no longer available to the authority. In extreme cases, an authority is empowered under Sec. 102 of the Town and Country Planning Act 1990 to serve a discontinuance order to require a building to be altered. But such action is rare and would involve the payment of compensation. I am not convinced that an order could be justified in this case. Alternatively, you could complain to the ombudsman or speak directly with the occupiers of the new dwelling.

I received a planning decision notice signed by someone other than the person duly authorised by the council's constitution to make such decisions. While the signatory has signed on behalf of the named head of development, it seems to me that the decision has not been properly authorised. Do you agree?

Provided the signatory is an officer in the same department, the courts' general approach to this issue suggests that the decision notice is likely to be valid. In similar circumstances, they have normally given the benefit of any doubt to the planning authority, particularly where the notice can be justified by a written record of the reasons that resulted in the decision. In R ex parte Goodman and Hedges v London Borough of Lewisham [2002], the court held that while it was unfortunate that a permission had been signed by an officer without the appropriate delegated powers, it was clear from witness statements and other evidence that it had been properly reached and was not irrational. In Cheshire County Council v Secretary of State for the Environment [1988], the High Court held that an enforcement notice had been validly issued by a senior assistant solicitor in the authority, even though this function was delegated under standing orders to the county secretary in consultation with the county planning officer. The court held that it was inconceivable that all the tasks assigned to the county secretary by the standing orders could be performed by one person and it must therefore be assumed that the authority had made "arrangements" for tasks such as this to be performed by him and his staff acting as his agents.

More and more planning authorities are using a reference to Sage to instigate a system where no minor amendments to planning approvals are considered, all such changes requiring a fresh application. I know this is incorrect, but can we have a learned response on this matter to thrust under the noses of these misinformed pedants? AL

An obiter remark made in the House of Lords judgment Sage v Secretary of State for the Environment, Transport and the Regions [2003], has indeed led some local authorities to aver that any deviations from approved plans will require a new permission. However, others have held that, as the remark did not relate to the substance of the case before the Lords (the meaning of the term ‘substantially completed’), it cannot be binding. The Planning White Paper, issued on 21/5/2007, addressed the problem and proposed to allow minor amendments to be made to a planning permission without the need for full planning permission. It averred that ‘recent case law’, assumed to be the Sage case, had been interpreted by many as restricting the potential for developers and planning authorities to agree between them as to the appropriateness of changes to an approved scheme. The White Paper continued "This leads to a situation where developers need to submit a further full planning application to make relatively small changes to how a development is delivered- resulting in delay, uncertainty and cost for the developer, additional work for the local planning authority and often unnecessary further consultation with stakeholders." The approach suggested in the White Paper was to amend primary legislation to so as to allow, at the request of the applicant, discretion for a planning authority to vary an existing permission where it considers that the change sought is not material.

This, in fact, is the present situation prevailing in Scotland. GH.

Response

I read with interest your commentary (Forum 12/10/2007) on the Sage case and the interpretation that some local authorities have put on it. We are facing such problems on a number of projects and this can cause considerable complications, particularly when dealing with older existing buildings. Can you tell me if there is any current challenge available pending the proposals in the Planning White Paper being adopted as new law? JF

Further Response

In Scotland section 64 of the Town and Country Planning Act (Scotland) 1997 states that a planning authority may, at the request of the grantee or a person acting with his consent, vary any planning permission, if it appears that the variation sought is not material. It is by no means uncommon for a party other than the original applicant to want to take advantage of this provision. Since planning provision should run with the land I would suggest that this is an unnecessary restriction which legislators in England and Wales would do well to avoid should they deem it necessary to amend the Act. However, from my experience south of the border, I would guess that most authorities would agree that the common practice of accepting minor amendments has worked quite well over the years. DE.

The only way to seek to overturn the practice of requiring a fresh application where permitted proposals are subject to relatively minor alteration would seem to be application to the courts. Clearly, if the Government is to include a reforming provision in legislation in the near future it is hardly worthwhile to pursue this course of action unilaterally. As DE points out, the wording used in the Scottish Act is too restrictive, and in my view it is hardly specific enough. To avoid future wrangles, any new law needs to go some way to define what constitutes a minor amendment or variation, while still allowing some flexibility of interpretation to suit particular circumstances. GH.

An authority I am dealing with has regular closed meetings between officers and members to discuss the merits of major applications. The authority has a long history of being member dominated and officers couch their negotiations in terms of what will and won’t be acceptable to members. Although minutes are kept, these meetings are held before officers write their reports, and thus there is clear scope of these reports to be coloured by, and follow member opinion. Is this unlawful or just poor practice? JM

This practice is specifically cautioned against by the government and the Local Government Association. In a joint leaflet entitled Positive Engagement – a guide for planning councillors,  also endorsed by other several other bodies including the Planning Advisory Service and the Royal Town Planning Institute, it is stated that councillors should not seek to influence officers or put pressure on them to follow a particular course of action in relation to a planning application. Officers who are members of the RTPI are bound by a professional duty to make impartial recommendations unfettered by the views of members.

I am unaware of any cases where the legality of the practice has been tested, and the codes of conduct which have to be adopted by local authorities under the Local Government Act 2000 do not usually cover the issue as such.

It is of interest that in a study conducted for DCLG in 2007 entitled Councillor Involvement in Planning Decisions the positive aspects of pre-committee meetings were put forward. Here, it was stated that such meetings can ensure matters are highlighted upon which members may wish to comment to ensure that there are no surprises at committee. Other benefits cited included the resolution of issues which might necessitate a deferral at committee, and the clarification of what a development consists of and how this relates to its setting. GH.

I have recently received a planning permission for a barn conversion from a local authority which consists of a one page approval, signed and dated but with no conditions. A few days later I received another approval notice for the same proposal, signed and dated as before, but including seven conditions. Has there been any case law that would determine if the first approval without the conditions is valid as the council want us to destroy this in lieu of the subsequent approval? SH. 

I imagine this difficulty arises out of an unnoticed administrative mistake and,if not resolved amicably, is one that ultimately only the courts can resolve. While not an exact legal precedent, the judgment in Fisher v Wychavon District Council [2000] is worth reference as it concerned a clerical error in a condition within a decision notice. Points relating to whether an authority does in fact have the power to issue a second corrected notice, and whether a notice is valid if it does not relate back to the original resolution of a local planning authority, have previously been discussed in these columns on 16/7/2004, 11/11/2005 and 15/6/2007. To sum up, it would seem that, while the courts have ruled that it is the decision letter itself that is the formal legal decision of the local authority and must be viewed intrinsically, in cases of dispute where a notice is unclear or contains inconsistencies they may be prepared to look at extrinsic matters such as intention. As the initial notice in point seems to be perfectly clear on its face, there may be a good case for arguing that it is a valid unconditional planning permission. GH.

If householder permitted development rights were withdrawn by condition in the terms "Notwithstanding Class E of the GPDO no outbuildings shall be erected within the curtilage of the dwelling" is a building erected in breach of that condition subject to the four-year immunity rule or the ten-year immunity rule?  The question is posed in the light of the Court of Appeal judgment in First Secretary of State v Arun District Council and Brown [2006]. NB. 

The Arun judgment clearly and authoritively establishes that the ten year rule applies in all cases where there is a breach of condition, save where it prevents a change of use to a single dwellinghouse. The condition which you cite does not stop a change of use to a single dwelling house. All it does is to prevent the future erection of a garden building as permitted development. If there had been no condition, and had such a structure had been erected which was not permitted development, then the four year rule would apply.

The pedigree of conditions which remove permitted development rights is, of course, well established. However, Circular 11/95 strictures against their routine use by local authorities without a proper planning purpose such as to prevent serious harm to amenity or the environment. If, as may be the situation in your case, there is no way that ten-year rule immunity can be established, it might be possible to attack the reasonableness of the condition by applying to have it removed. GH

A client of ours was granted permission in 2004 for a block of 14 flats, comprising 8 x 1 beds and 6 x 2 beds. Although the description of the development refers to the numbers of units the permission was not subject to any section 106 agreement, and all conditions related to submission of details only. Our client is now to start works but would like to change the top two flats to a single penthouse, and alter the two bed units to one bed units. Would these alterations require a fresh planning application?  It is our understanding that the loss of units does not constitute development unless it is considered a material change of use which has planning consequences, such as the council establishing a problem with the insufficient number of small units. In this case, however, there are no policies preserving smaller units. FC.

I assume the permission granted followed an outline application and that the conditions applied related to the submission and approval of the normal reserved matters. In that case the question is whether a reserved matters application, incorporating the unit changes you describe, may be made within the ambit of the original outline permission. On the face of it, the altered unit sizes do not seem to be anywhere near significant enough for a local authority to aver that a fresh application is required. They appear not to pose any different amenity or policy issues than would have been apparent at the outline stage. Neither do the unit changes seem to raise any matters which need to be the subject of fresh consultation procedures. GH.

A planning application was refused more than six months ago. It was recently realized that a statutory consultee, namely the local community council, was not consulted. What is the status of the decision and would it be possible to appeal against non-determination? BT.

If a formal planning decision is issued by a local authority without compliance with certain consultation requirements this does not make that decision invalid per se. However, it would make it liable to challenge in the courts subject to the case being accepted and the usual time limits. It would then for the court to consider whether the decision should be struck down. But, it will not do so if, in its view, the decision would have been the same if the necessary consultation had in fact been carried out.

The option of appealing to the Planning Inspectorate against non-determination is not open to you, However, the refusal could have been appealed had you been in time. In that event an inspector would then be in possession of the views of the community council and be able to make a decision based on all the facts then before him or her. GH.

When deciding whether a planning application should be dealt with by committee or under delegated powers, should weight be given to

a)    The site being in a conservation area

b)    A large number of objections received including some from professional parties

c)    The views of ward councillors. DH.

Each local authority has its own standing orders regarding what applications can be determined under delegated powers and what must go to committee, so you should find out from the relevant authority what its rules are. Quite often the factors you refer to are pertinent to whether the application needs to go to committee. Many councils’ rules allow a member to request that an application should be reported to committee, so if a ward councillor is particularly concerned about a proposal they could ask for this. If you consider an application has wrongly been dealt with under delegated powers when it should have gone to committee, you would need to apply to the courts for judicial review which is not a cheap process and normally this has to be done within strict time limits. The alternative is to use the authority’s complaints procedure and then, if necessary, complain to the ombudsman, though this is extremely unlikely to result in the decision being changed. JH.

Commercial buildings can be demolished without reference to the planning authority, but residential ones require prior notification under part 31 of the General Permitted Development Order 1995. Why are the two types of building treated differently? Under part 31 is a planning authority able to object to demolition of a dwelling and, if so, on what grounds? SH.

The interrelationship between the provisions in planning law regarding demolition is complicated – as section 4.3429 of Development Control Practice explains.  Basically the Demolition – Description of Buildings Direction contained in circular 10/95 grants a blanket exemption from the need for planning permission all buildings except dwellings or buildings adjoining dwellings, so part 31 class A sets out a prior notification procedure for the demolition of a dwelling or a building adjoining a dwelling. Thus, sometimes this procedure is required to demolish a commercial building. Notification is "for a determination as to whether the prior approval of the authority will be required to the method of demolition and any proposed restoration of the site", so all the council can control is how the demolition takes place and how the site is restored. It cannot object to the principle of demolition. The council has 28 days to respond and, if it does not respond within that period, demolition can go ahead. The reasons for this provision applying to dwellings and properties adjacent to dwellings is presumably to protect nearby residents from being affected by the likes of untidy demolition sites, exposed gable walls and avoidable noise or vibration. JH.

My local planning authority has asked me to research the dual powers that are available once an appeal against non-determination of an application has been lodged. I understand that this is a common tactic, particularly where major schemes are proposed. Section 78A of the Town and Country Planning Act 1990 provides that dual jurisdiction will apply for an additional period once the statutory eight-week period has expired. While I am unclear on how long this period is, a figure of two to three weeks has been suggested. What is your advice? SM.

The new functions are outlined in paragraphs 77 to 80 of the explanatory note to the Planning and Compulsory Purchase Act 2004, which inserted section 78A into the 1990 Act. These explain that the intention of the revised provisions is to allow a "short" period of dual jurisdiction between the secretary of state and the local planning authority where an appeal has been made against non-determination. Reflecting the wording of section 78A(6), the note makes it clear that the additional period of time will be prescribed by development Order. As far as I can establish, the new provisions have not yet come into force. No changes have yet been made to the General Development Procedure Order 1995 to prescribe the period of dual jurisdiction and I have not seen any consultation paper proposing a time frame. PM.

We have just had an application for a replacement dwelling in the green belt refused. The committee report recommended refusal as the new dwelling was substantially larger than the previous one. At the committee meeting, however, a second reason was introduced, quoting the local plan density policy and planning policy statement 3 (PPS3) and claiming the application did not make efficient use of land. My view is that PPS3 addresses housing developments of sufficient scale that density parameters may be applied and is not relevant to an isolated rural dwelling. Your view on this reason for refusal and its late introduction is welcome. GJ.

Article 22 of the General Development Procedure Order 1995 requires planning authorities to give their full reasons for refusal. Thus, if an authority realizes at the last minute that a further reason for refusal applies, officers should bring it to the attention of the committee. Having said this, like you I consider the second reason for refusal completely contradicts the first. JH. 

My authority granted permission for a number of dwellings as enabling development to secure repairs to a listed mansion.  The site is in the green belt where new dwellings are inappropriate development. The developer now claims that their architects miscalculated the required enabling floorspace of the new dwellings and that they are effectively 380sqm in deficit.  A financial statement has now been submitted including costs incurred during years of delay (partly due to land ownership disputes) and justifying amended enabling development which is more substantial. Are you aware of other cases where developers have come back to amend what was granted as enabling development? – HS

Though a case where the enabling development was to facilitate improvements to an educational institution rather than renovate a listed building, the called-in case, DCS number 100-054-436, is an example of where the extent of development has been increased and allowed. As with any application resulting from a change in circumstances, a planning authority must assess the merits of a scheme and determine it accordingly. It clearly is necessary to make a careful assessment of the revised financial appraisal, particularly as the housing market has now taken a downturn, to see if the level of enabling development is actually justified before allowing such a scheme. JH.

I am seeking to discharge a planning condition which requires the development to have on-site renewable energy technologies. The reason given in the decision is to reduce carbon dioxide emissions and quotes an adopted local plan policy. This requires at least 10% of the development's predicted energy requirements from renewable energy, but does not make any reference to carbon dioxide savings. The scheme put forward to satisfy the condition proposes 10% renewable energy, using technology accepted by the Code for Sustainable Homes, but the council is refusing to accept it because it does not comply with an supplementary planning documentation which seeks 10% carbon savings. Our scheme only provides 5% carbon savings but still complies with the condition reason. Can the council dictate the percentage of carbon savings where they have no policy to do so, or is this another case of trying to introduce policy through the back door route of supplementary planning documentation? CL

This query relates to Scotland, though the same basic principles would apply in England. Paragraph 42 of SPP1 The Planning System indicates statements made in supplementary guidance carry less weight than development plans but are likely to be a material planning consideration. Their relevance will depend on the extent of public consultation carried out in preparing it. Obviously you can lodge an appeal against the council’s refusal of your submission. The outcome will be determined on the merits of the case in the light of this guidance. JH.

A client has asked us to appeal a planning refusal or reapply.  The refusal date, however, is six days before the site notice period expired. Article 20(5) of the General Development Procedure Order states a local authority shall not determine an application before the site notice period ends.  We drew the council’s attention to this and invited them to withdraw the decision which they refused to do. Is the refusal valid given the mandatory direction in Article 20(5)? RH

The only way to challenge a planning decision would be to apply to the high court. The court would, however, only be likely to quash it if a different outcome was likely on redetermination. The only circumstances where this would apply in your case would be if support letters had been received in the period before the notice expired. JH.

Response

I suggest the applicant appeals against the prime facie refusal but points out the discrepancy and invites the Inspector, if they agree that the decision was not valid, to consider the appeal as one against non-determination. Such a course was followed, albeit many years ago, by an Inspector appointed to determine an appeal where the application had not been advertised as affecting a conservation area’s character when it should have been. IA.

I was pleased that s190 of the Planning Act 2008 allows minor amendments to planning approvals (which should now be called 'Non-Material Changes').  I assume we will have to await a revision to the General Development Procedures Order 1995 before such applications can be made (Sub-Section (5) of the new s96A of the 1990 Act).  Is this right and, if so, when is this likely to happen? Sub-section (3) of the new s96A of the Town and Country Planning Act 1990 allows authorities to impose either new or amended conditions when a 'Non-Material Change' application is made.  Are they limited to only change conditions that relate directly to the non-material change sought by application or can the they change any or all conditions regardless of whether or not they relate directly to the actual planning change sought? GB. 

The situation regarding the coming into effect of this provision is somewhat curious. Under s241 of the new Act the "Non-Material Changes" provisions come into immediate effect. s96A inserted into the 1990 Act by s190 of the new Act, however, states that an application for a non-material change must be made in the form and manner prescribed by development order. No development order has been introduced, so it would seem the provision is effectively not yet implemented. I do not know when the necessary order will be forthcoming.

It is a principle of planning law that conditions should relate to the permission being sought, e.g. when details are approved under an outline permission, the conditions should only relate to those details. Thus, under s96a it would seem likely any conditions should relate to the amendment sought. JH.

Response

I spoke to the government office recently regarding this.  They advised that section 190 has not yet come into effect, and cannot do so until the relevant development order, circular and possibly secondary legislation has been published.  It is anticipated that this will occur no earlier than April 2010. SF.

Further response

Further to the comments on 16 January 2009 on s96A of the Town and Country Planning Act 1990 inserted by s190 of the Planning Act 1990 relating to non-material changes to planning permissions, could you reconcile the statement in the government’s response to the Killian Pretty Report that primary legislation could be necessary to implement its recommendations on minor material variations with the existence of this provision?  SR.

Further response

S96A would, when implemented, allow authorities to approve amendments to planning permissions which are "not material". The Killian Pretty recommendation relates to "minor material variations" which presumably is intended to cover slightly more significant changes which should be the subject of a simplified or expedited application procedure. In principle this would seem a good way to reduce bureaucracy and is to be welcomed. JH.

An application, recommended for approval by officers, was rejected by committee who said that consideration should be deferred for a full land contamination survey and full ecological survey. There were no objections from statutory consultees or third parties on these issues. The need for such studies was not identified when the application was registered or before committee consideration.  The case officer has been asked to justify the cost and need for these surveys and cannot. The council would not even agree to scoping or desk top studies and have insisted on full studies. The applicant has refused to commission expensive studies without justification and has given the Council the option of reconsidering this request for this information or refusing permission. The Council has written to say they are treating the application as withdrawn. Can they do this? AH.

Sometimes councils will take a pragmatic view when additional information is needed and the applicant appears to have "lost interest", sending them an ultimatum requesting it by a certain date or the application will be treated as withdrawn. In this instance, however, the applicant is still clearly interested in pursuing the scheme. I would advise appealing against non-determination. JH.

An application for 12 dwellings was, following negotiations, amended to 11. The scheme was eventually refused with the notice referring to 12 dwellings. The stamped plans and committee papers refer to the 11 dwelling proposal, so I am unclear why the decision refers to 12. Is the authority bound to retain the initial description or should it change it if the application is amended? If the authority has acted incorrectly, should I claim costs at appeal? AB.

Though I am not aware of any legal requirements to do this, from my experience planning authorities would normally amend the development description when a proposal is changed. The failure to do so here was presumably a clerical error. The application clearly was determined as being for 11 dwellings. This "typo" would not be grounds for seeking costs on appeal as you could not show evidence of incurring additional costs as a result of unreasonable behaviour. JH.

The Planning Inspectorate has powers to issue "split decisions" on appeals.  Planning Authorities can do the same in respect of advertisement applications.  I understand that some planning authorities believe there are powers to issue split decisions on planning applications, but can find no authority for this.  Please can you clarify? PS.

It may be possible for a local authority to issue a split decision which would permit part of a development, but exclude another part by a condition, if the court decision Kent C.C. v Secretary of State for the Environment. 1976 is followed. In Bernard Wheatcroft Ltd v Secretary of State for the Environment 1981 it was held that it was possible to grant permission subject to a condition that only a reduced development was to be carried out, provided that the result did not differ substantially from the original development proposed. In determining what was a substantial change the main criteria should be whether those who had been consulted on the original proposals would be unjustly deprived of the opportunity of further consultation. If there is any doubt as to how a split decision may be construed, a condition stating that the permission does not relate to a particular element may be imposed. JH

What remedy do neighbours, etc have if an application is granted and they feel inadequate information has been supplied by the applicant for the council to assess the proposal properly? DC.

The possible remedies would be judicial review or formal complaint and possible reference to the ombudsman. Judicial review is expensive and can, of course, only be used where an error in law is alleged. It would, however, get the decision quashed if successful, whereas formal complaint is very unlikely to achieve this. JH.

Is there any case law concerning different grounds for refusal of the same development? I have been asked to advise on three applications for the same development which contain three, two and five grounds for refusal but only one of the grounds for refusal is common to all three decisions. I thought authorities only have 'one bite of the cherry' and that to be inconsistent between applications for the same development could lead to an ombudsman complaint on the grounds of inconsistency. JE.

I am not aware of any cases on this issue, but article 22 (1) (a) of the General Development Procedure Order 1995, as amended, states when planning permission is refused, "the notice shall state clearly and precisely their full reasons for the refusal, specifying all policies and proposals in the development plan which are relevant to the decision". Thus, all refusal reasons should be given, though sometimes there might be practical difficulties, e.g. if a scheme is refused under delegation and a resubmission is refused by a committee which raises further objections. Failure to give all reasons for refusal could be grounds for formal complaint and possible ombudsman reference or seeking costs at appeal. JH.

What date should go on a decision notice? Under the provisions of the General Development Procedure (England) Order 1995 an appeal should be submitted within six months of the date of the decision notice.  My Authority uses either the date that the application is determined at committee or the approval date if determined under delegation.  Whilst this may be common practice, there can be instances where the decision notice is not actually posted until a few days later and then sent second class.  NH. 

For 8/13, etc week target purposes, the date the decision is sent out is what counts and, if your authority’s practice does not record on this basis, the auditors could criticise you. As you say, normally a notice goes out within a day or two of the decision date, so this slight delay is not likely to be an issue in relation to reckoning the six-month appeal period. The Inspectorate does have discretion to accept late appeals and would be likely to use it if, say, there was undue delay in getting a notice out or delivery was held up by a postal dispute. JH.

I am considering purchasing a camping site which has operated since 1946. In 1991 an enforcement notice was served against touring caravans and the owner did not challenge this owing to a medical condition. I have since learnt that one of the planning committee members was at that time operating a camping site with unauthorised caravans and was subsequently granted a lawful development certificate contrary to officer recommendation on limited evidence. This is a clear abuse of power and smells of discrimination. Can the certificate be revoked? Can I get permission for touring caravans if I purchase this site? BJ.

Regarding the site you are considering buying, under the provisions of s191(2) of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991, an enforcement notice "trumps" lawful development rights, i.e. any ten-year immunity is lost as a result of the enforcement notice. Thus the only way to get caravans on the site would be to obtain planning permission which may or may not be granted depending on the authority’s present policies.

Regarding the councillor’s site, in view of the time that has elapsed any action such as judicial review or reference to the ombudsman would be unlikely to be successful. In any event you would not have sufficient direct interest in the matter to be able to take action. JH.

An authority has approved the redevelopment of a large school as new build with some existing blocks remaining unaltered. The school wishes to retain a small block that was to be demolished but the authority wants the whole application resubmitted. Is this the only approach or can a separate application be submitted? The authority is presumably still using the Sage v Secretary of State for the Environment (2003) case to avoid a minor amendment being submitted. AJ.

There is no obligation to carry out all work shown on approved plans. For example, if permission is granted for 100 houses but only 50 are built, the houses are not in breach of planning control. Similarly, unless there is a condition requiring the demolition of the block you wish to keep, you should be able to retain it. If, notwithstanding my advice, you feel an application is necessary for this change to the scheme, it would seem possible to make a submission under the non-material changes procedures which came into force under the Planning Act 2008 on 1 October. JH.

Permission was granted for a mixed-use development including dwellings. Condition 2 stated ‘the development should be carried out in complete accordance with the approved plans unless otherwise amended by the requirements of condition 8 of this permission’. Condition 8 required particular details to be agreed. The developer subsequently submitted an application under section 73 of the Town and Country Planning Act 1990 for the 'variation of condition 2 to substitute revised house types for 426 units'.  This was approved requiring the development to commence within 3 years. The developer has effectively renewed and amended the permission without paying a full fee.  The section 73 application involved more than the variation of a condition and actually involved 're-planning' parts of the development.  Should the Council have required a new  application? Is extending the timescale for implementation contrary to section 73 (5) of the Act (as amended), which states planning permission must not be granted under this section to extend this time? MP.

The authority seems to have adopted a somewhat strange and probably illegal procedure here. As you point out, section 73 of the 1990 Act was amended by section 51 of the Planning and Compensation Act 2004 so it can be no longer used to extend commencement periods. One effect of the procedure has been to reduce considerably the authority’s fee income! Nevertheless, unless the decision is subject to successful judicial review (and it may now well be too late to take such action), it must stand in law.  I would not recommend an applicant trying to save fee expenditure and emulating this practice, however. JH.

What is the definition of a non-material amendment as there does not appear to be any clarification? SE. 

S96A of the Town and Country Planning Act 1990, inserted by the Planning Act 2008 states, "In deciding whether a change is material, a local planning authority must have regard to the effect of the change, together with any previous changes made under this section, on the planning permission as originally granted." The Department of Communities and Local Government’s "Minor Material Changes to Planning Permissions: Options Study" does discuss the problem of defining a non-material amendment (sections 3.7 to 3.17 particularly), but does not come to a conclusion.   In the consultation paper Greater Flexibility for Planning Permissions issued in June 2009 the government stated that they did not propose to provide a definition of "non-material" as they considered this a matter for authorities’ discretion. Before the new procedures came in last month, many authorities applied two tests in assessing whether a change was appropriate for a minor amendment;

•    Either additional floor space would not be allowed or only in extremely exceptional circumstances would very small increases be allowed

Changes would not be accepted if there were likely to be planning objections to them. JH.

In what form should authorities issue non-material amendment decisions? As a written letter? If so, how should they account for new or altered conditions? Should it therefore be issued as a "revised" decision notice? If this is the case, should the time limit be backdated to match the original decision? RC.

The General Development Procedure Order 1995 as amended indicates a decision should be in writing. Thus a letter could suffice, but normal practice on planning decisions is to issue a decision notice, so this would seem sensible. The consultation "Greater Flexibility for Planning Permissions" indicated a section 96a application does not result in a new permission, but an amendment to the existing one. Section 96A of the Town and Country Planning Act 1990 (as amended) gives planning authorities powers to impose new conditions or to remove or alter existing ones and any decision should make such changes clear. It would not, however, seem necessary to reiterate existing conditions which remain unchanged including the time limit one. Given that most if not all authorities use computer systems to generate decision notices nowadays, producing a non-material amendment decision by this means could be difficult logistically. JH

In the Communities and Local Government guidance - Greater Flexibility for Planning Permissions, the section on minor material amendments at paragraph 62 states 'LPAs are advised to include a condition listing approved plans in decision notices'. However, my authority has been criticised by inspectors in the past for such conditions and have changed them to informatives. Please could I have your thoughts? CT

The Planning Act 2008 introduced a procedure for non-material amendments, but there was no provision for minor material amendments. The Killan Pretty Review recommended this issue should be addressed. One of the options proposed by WYG Planning and Design who carried out research on this issue for the government was that, if parliamentary time was not available to introduce further primary legislation, this issue could be addressed by authorities imposing conditions listing approved plans when planning permissions are granted. If changes in a scheme are then needed which could not be treated as a non-material amendment, an application under section 73 of the Town and Country Planning Act 1990 could then be made to vary this condition.

To me this seems a somewhat convoluted procedure to avoid introducing primary legislation. Like you I am aware of appeals where inspectors have objected to "approved plan list" conditions and in this respect the proposal appears a volte face. The WYG report does argue such conditions would comply with circular 11/95 advice, however. The General Development Procedure Order 1995 has been amended to facilitate quicker processing of section 73 applications by requiring less consultation. It would seem this should now become planning authorities’ practice. It does, however, beg the question what degree of change can be dealt with under this procedure, e.g. when a housing layout is completely redesigned. JH.

Following lengthy negotiations, our local authority granted planning permission to convert a building into flats.  On the decision notice, under ‘Informatives’, they included a list of approved drawings, but they listed the original drawings as submitted, not the revised ones. They say this was a typing error and told us by email which drawings have been approved.  We have asked for, but not received, a revised notice with these amended drawings listed.  Could we implement the scheme as originally applied for without fear of enforcement? CB.

The cases Miller-Mead v Minister of Housing and Local Government (1963) and Slough Estates v Slough Borough Council (1969) indicate a planning permission should be taken on its face value. Your notice lists the original plans as being the approved ones, so it would seem the scheme could be implemented using these. Having said that, to avoid possible problems, it would seem sensible to seek a certificate of lawful development before doing the work. JH.

Response

Whilst I do not disagree with JH's reply, I believe that "informatives" (not being conditions) have limited legal weight. I would suggest that if the decision notice is framed in terms of "in accordance with the approved plans" (thus incorporating the approved plans into the decision notice), and there are plans stamped "approved", these plans are the approved ones regardless of what is listed in an "informative". Incorporation of the stamped approved plans into the decision notice would mean that the decision notice is clear on its face and it would not be permissible to go behind this by reference to an "informative". PB.

Whilst not directly relevant to this issue, it is worth noting that paragraph 11 of circular 11/95 has guidance on using informatives.

Further Response

Approximately 12 years ago the Secretary of State granted planning permission for a retail development subject to conditions recommended by an inspector. A recommended condition restricting floorspace was omitted and a new decision notice including the 'new' condition was issued. This was challenged as beyond the Secretary of State's powers and the Department of the Environment submitted to judgment. The principle was simple - that as soon as an application is determined it no longer exists and the deciding authority has nothing to amend. In other words there was no power to correct a mistake. If either party wanted to amend a decision a new application would be required. BJ.

Further Response

Our authority distinguishes between conditions and informatives. Informatives are included to remind the applicant of other duties and responsibilities only, and do not constitute a requirement, which would be set out under conditions. If the council referred to makes this distinction, thus making it clear on ‘face value’ what is material to the approval, I would disagree with JH’s interpretation. A decision can be issued without any conditions e.g. a retrospective permission, but with informatives, with the approved plans indicated instead by way of an approved plans stamp. In this case, if this stamp was not applied to the original plans but to the revised plans, in the absence of any condition, the stamped plans would take precedence over any informative. However, without knowing how the Council set out their decision notices, it is unclear. CN.

Further Response

Since the events BJ reports the Planning and Compulsory Purchase Act 2004 has introduced a power for Secretary of State and appeal decisions with errors to be corrected. Regarding CN’s comments, there is a principle in planning law that decision notices should be taken on their face value which is why I consider there is a strong case to argue that the work could be carried out to the original plans. I would, however, accept that the situation is not clear-cut, which is why I advised discussing the issues with the planning authority and, if necessary, making a lawful development certificate application. JH. 

The new non-material amendment application procedure states that applications should be determined within 28 days. Our authority considers that after this time the works can be implemented if a decision is not issued, however this is not reflected in the legislation. Likewise the right to appeal against non-determination is not set out either. We would be grateful for your views on what happens after the 28-day period. HR.

The government’s recently-issued "Greater flexibility for planning permissions guidance" indicates (paragraph 59) that there is a right of appeal against non-determination after 28 days. This is because s78 of the Town and Country Planning Act 1990 not only covers conventional appeals but also approvals "required under a development order".  JH.

My neighbours applied to build a bungalow.  The decision notice indicated permission was granted subject to the conditions set out below.  However, instead of conditions reasons for refusal were set out!   On being contacted, the council realised it had made an administrative mistake using the wrong decision template. Do my neighbours have a valid permission which they could then implement?   DF

The case, Donovan v First Secretary of State and North Warwickshire District Council (2004), dealt with a similar scenario, but no adjudication was made on this issue. The general principle is a planning permission should be interpreted from the decision notice itself, without reference to extrinsic matters. The courts have, however, held that that are exceptions, including where a permission’s wording is ambiguous or in certain circumstances where its validity is challenged (see Fisher v Wychavon District Council, 2000). In your case, an examination of the application’s ‘evidential matrix’, including any committee resolution is clearly necessary to establish the intended outcome. That might confirm that the council had no authority to issue the permission or that proper decision-making procedures were not followed. Consequently, until these matters have been clarified, it would be unwise to assume the document constitutes a permission. If the decision’s status cannot be clarified otherwise, it may be appropriate for your neighbours to submit a lawful development certificate application. JH,

A planning application for a domestic extension was submitted, with the house and land to the rear within the red line. The householder development was approved accordingly, subject to a condition stating that the permission related solely to the extension to the house and no other development. The land to the rear, clearly used in conjunction with the house, has been the subject of pre-application discussions for change of use to garden but, lying outside the defined village boundary, the authority has advised that permission would be resisted. Does defining the red line as forming part of the residential planning unit legally establish its ancillary residential use, or whether the imposed condition can override the accepted and approved submitted documentation? JJ. 

Court cases often cited in matters of conflict between case descriptions and plans are Slough Estates v Slough Corporation [1969] and Wivenhoe Port v Colchester Borough Council [1985]. It appears that apart from the decision notice, any interpretation as to what had been permitted should be based on a reasonable construction of the development description given in the application form, the content of associated plans and any other evidence as to the intention of the applicants or the assumptions of the local planning authority. In this particular case, the condition leaves no doubt that the permission only covers the house extension. JH.

Response

I think you are correct but arguably the leading court case is Barnett v The Secretary of State for Communities and Local Government [2009].  In Barnett the Court of Appeal considered precisely this situation and held a distinction should be made between a red line on an application for a new dwelling, which would define the curtilage, and one on an application for an extension.  In interpreting the planning permission factors considered to be material by the Court of Appeal included whether the proposed extension extended beyond the original curtilage and whether the permission [and the application form where the permission expressly incorporated it] made reference to any change of use. PD.

Under s96A of the Town and Country Planning Act 1990 (as amended) a non-material amendment application can be submitted. By definition a non-material amendment does not materially change the permission, so why does it need permission?  If the change is not material how could an authority refuse an application?  Does a s96A application only confirm that permission is not needed for the non-material amendment, so would it not be more appropriate to seek a lawful development certificate?  Furthermore, as a material minor amendment requires an application under s73 of the 1990 Act to vary an approved plans condition, is not this procedure the only logical way to deal with any amendment to a planning permission that is material (i.e. one that actually requires permission)?  In this context s96A creates the illusion of amending the permission when really that can only be done with a s73 application or a new planning application. DB. 

Following the case of Sage v Secretary of State for the Environment 2003 authorities understandably became reluctant to approve minor amendments by exchange of letter, but this created difficulties for  developers who, say, wanted to change a window’s position slightly and had to make new applications, so the non-material amendment and material minor amendment procedures were introduced.

The lawful development certificate procedure cannot be used instead of the non-material amendment one. If a developer wants to put a window in a different position, a certificate would have to be refused as the permission would not cover this change. I would envisage that most non-material amendment applications would be approved as, if there are objections to the change sought; one is effectively saying it is material. The minor material amendment procedure is, of course, non-statutory – when the government realised there was no procedure to cover this situation, it could not introduce primary legislation so this provision was introduced in its document, "Greater Flexibility for Planning Permissions". It does raise the interesting issue that, when a non-material amendment is approved, it will be shown on a plan, but assuming there is an approved plan condition, that plan will not be listed in the condition. The implications of this might be something for the lawyers to decide sometime, but clearly enforcement would not be expedient in such situations. JH.

Response

JH indicates the s96A procedure for seeking approval for non-material amendments to planning permissions is a statutory one. Does this mean development which differs in a non-material way from that which was approved, will as a result of s96A of the Town and Country Planning Act 1990 (as amended), be unauthorised in planning terms, unless a s96A application has been approved?  If so, this must raise serious concerns for developers, property owners and planning authorities, as there would be no room for the slightest deviation from approved plans without first gaining a s96A approval. DB. 

Further Response

s96A only sets out the procedure for approving non-material amendments. The case Sage v Secretary of State for the Environment, Transport and the Regions 2003 stated that if a building operation was not carried out, both externally and internally, fully in accordance with a permission the whole operation was unlawful and this is why planning authorities must be alert to buildings not being built as approved. Apart from deviations from approved plans which are de minimis, any deviations not approved as non-material amendments or under other procedures would make a development unlawful, so conditions on the permission might not then be effective. This is analogous to the situation where conditions precedent have not been complied with. Clearly planning authorities need to be careful that they do not end up in situations where they cannot enforce conditions such as opening hours or use restrictions, though where there are not such implications it may well not be expedient to enforce for minor deviations from approved plans. JH.

A client has permission to convert a hotel to "close care" apartments (this means treatment rooms and two nurses’ studios would be provided – these would be manned daytime only). Before permission was granted the consent was reduced to 46 by taking off two units and amended elevations were submitted. However no amended layout drawings were submitted and the approved layout drawings show 48. The permission description still refers to permission being for 48 units. A condition requires development in accordance with the approved plans. I would appreciate your views on what permission exists? Also, the authority indicates permission is needed to use the development for conventional old persons’ housing i.e. over 55's. The decision notice describes the development as "close care units" but there is no condition restricting the use. I would appreciate your comments. DS.

The permission’s terms are unclear in terms of the number of flats permitted. Given the scheme was amended by removing accommodation which comprised two of the units, the sensible way to interpret this permission would be that it related to 46 units and the layout should be as shown on that drawing but with the two "sliced off" units omitted. It would, however, be appropriate to ensure the planning authority agrees this and if there is doubt obtain a lawful development certificate.

Regarding your subsidiary query, the treatment rooms and nurses’ studios would be ancillary accommodation to the main use, rather than a separate use. Furthermore, an appeal in Berkshire suggests close care units are a C3 use (DCS no 100-048-414), but the nature of accommodation proposed there was slightly different from what your client proposes. Whilst the situation is not clear-cut, I would consider planning permission would not be required. Again it may be advisable to obtain a lawful development certificate. JH.

When deciding whether an existing business is A1 or B8 one of the considerations my authority uses is the percentage sales to the general public compared to the percentage on a wholesale basis. Are the terms "general public" or "wholesale" defined or considered in planning legislation, guidance or appeal decisions? My authority is unsure whether sales comprising a single bulky product to a tradesman to fit into someone else’s home, e.g. a bath to a plumber or wooden flooring to a joiner, should be considered wholesale. TL.

I am not aware of any definitions of the terms wholesale and retail in legislation or government guidance. Sections 4.3336 and 21.312 of Development Control Practice give useful guidance on this issue. The latter includes a helpful quote from a 1986 appeal decision in Lancashire (DCS number 037-755-311), "The sale of goods to people for their own domestic consumption and that wholesaling was the selling of goods in bulk for retail sale by others". A more recent appeal where such issues were considered is an enforcement one in Devon (DCS number 100-051-976) where premises authorized for use for wholesale storage and distribution of bulky agricultural goods were being used for retail purposes. Decisions on whether sales are wholesale or retail have to be made on the circumstances of each case. Factors to take into account include the type of goods sold, quantities, i.e. wholesale would normally be in large amounts, whether customers were restricted in some way, e.g. having to produce a business letterhead to be able to buy or payment is later settled by invoice, how and where the business is advertised, the layout of the premises, e.g. whether there is a "showroom" of a retail nature, and whether there are two different price structures for wholesale & retail customers. Regarding your query about a tradesman buying goods to fit into someone’s home, though I cannot cite an appeal decision etc to support the view, logic would seem to dictate that such sales would normally be wholesale. JH.

An application was submitted for a mobile home. The site boundary did not include any curtilage land or access. The siting was considered unacceptable so the applicant amended it, resulting in a different site boundary with no overlap to the previous one.  There were then further problems with the application and it was withdrawn.  The applicant now wants to resubmit the application claiming a 'free go' for the fee.  The site boundary is in the position of the amended plan but also includes a curtilage and the access.  The Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 allow the inclusion of additional land for access when using a "free go" but does not mention the inclusion of any other land.  Was the authority correct to allow the site boundary to be amended during the application’s processing and can a free go be claimed if the application site has increased in size? TM.

Dealing with your first question, in Bernard Wheatcroft Ltd v Secretary of State for the Environment 1981 it was held that the correct method of deciding whether amendments to permissions should be allowed was "whether the development permitted is in substance different from that applied for". In exercising this judgement "the main criterion is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation." Whether the amendment was appropriately accepted needs to be considered against this test.

Regarding the fee issue, regulation 8 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 makes clear that for a "free go" to apply after a withdrawal the application must relate to the same site as the original application and the only additional land that can be included is for a different means of access, so the inclusion of additional curtilage land clearly precludes a "free go". If your client had been entitled to a "free go" it is not clear whether the entitlement should be assessed on the original boundary or the one for the application as amended. The Fee Regulations refer to the "same site as that to which the earlier application related", so I would presume it should be the original boundary, but I am not completely sure on this. JH.


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