Q & A 25.4/10
A developer has moved the boundary of an existing waste management facility onto adjacent agricultural land, increasing the overall area of the site. The hard surfaced area of the site has been extended into this area, although no waste transfer operations are taking place on the extension itself. Does this constitute an extension of the planning unit and accordingly a material change of use?
I imagine that you are contemplating whether to take enforcement action now, or wait until the transfer operation commences. I cannot imagine there would be a problem in showing that what had taken place already was development requiring planning permission. But there is a case for waiting in that the requirements of any notice could then refer to the cessation of the waste operations themselves. This would then give your authority more complete control should there be a further breach.
My authority is prosecuting a waste transfer station operator for non-compliance with a notice alleging breach of a working hours’ condition. While the operator admits that he is bringing waste onto the site and placing skips down at all hours, he claims that these activities do not constitute a waste transfer station operation and are thus beyond the terms of the notice. I have always considered them to be part and parcel of the overall operation. Do you agree?
The operator’s argument is flawed. Unless it can be demonstrated that the delivery and storage of skips and waste on the site has no functional relationship with its use as a waste transfer station, which seems unlikely, these activities will be ancillary to the primary use of the site for such purposes. Only where any activities are clearly separate from the primary use would they not be caught by such a notice. But in those circumstances they would not be authorised by the existing permission and would thus represent a breach of control.
Does the £85 fee to discharge details to comply with conditions apply to civic amenity waste site applications? Paragraph 128 of circular 04/2008 states this charge does not apply to fee category 11 proposals, use of land for the deposit of waste or refuse. Instead they are covered by regulation 11B inserted into the Fee Regulations by the 2006 amendment which provides for fees for inspections of mineral and waste sites. In my experience inspections for civic amenity sites are not covered by regulation 11B, only landfill sites. Also, can applications to discharge multiple conditions be covered by one £85 payment? If so, does the whole application have to be refused if one element is not acceptable? There seems to be inconsistency in administering these charges between authorities. HP.
The charges for discharging condition details were discussed in Forum on 25 July. Whilst circular 04/2008 advises regulation 11B takes precedence over these charges for mineral and waste applications, I cannot see the legal justification for this. The new regulation 11D in the Fee Regulations does not say these charges do not apply to mineral and waste schemes and the 11B provisions are for monitoring compliance with planning control in all respects. I suspect, however the circular is correct. Can readers throw any light on this issue? Paragraph 124 of circular 04/2008 indicates that one fee is payable for multiple applications to discharge conditions. I cannot see anything to prevent part approval of details to comply with conditions and paragraph 128 encourages negotiation on such issues. Regarding the comment at the end of your question, the provisions for fees to discharge condition details do seem to raise a lot of issues and they are not very well explained in circular 04/2008, so I am not surprised authorities interpret the rules differently. JH.
In the 15 August 2008 issue there was a query regarding fees for discharging conditions for minerals and waste facilities. I would comment that HP is correct in stating that the monitoring fees for minerals and waste sites do not cover civic amenity sites. I agree with JH that the new regulations appear to give no legal justification for the statement in Para 128 of circular 04/2008 that the fees under regulation 11D do not apply to such sites. I would imagine therefore that authorities could legally charge such a fee. There is a clear failure in this part of the circular to differentiate between the process of approving schemes required by condition, and confirming compliance with conditions. While there could be some logic to not charging fees on the basis that the latter are already covered by the site monitoring fee regime, this is clearly not the case for the former which is completely separate. There is therefore a lack of clarity in the circular. My authority has written to DCLG twice since the fees revision to seek clarification and is still waiting for a response. JS
The advice you have been giving in about charging to discharge conditions seems to be at odds with the advice now offered in the Journal of Planning and Environmental Law (JPEL) 2009 No 4 p452. Would you consider this advice and set out your views whether authorities are entitled to charge to discharge conditions as many have been? VM.
In both responses I said that the £85 and £25 fees were payable for the approval under such conditions. In my second response I indicated that the government had sent a letter to local authorities subsequent to circular 04/2008 indicating that the fees are payable both when an application is made before development commences seeking, say, approval of materials, and if after completion written approval is required that it has been carried out in accordance with conditions. In the JPEL, its editor, Michael Purdue, has argued that these fees are only payable in the latter circumstances. The fee legislation and the subsequent government note have no doubt been drafted on the advice of government lawyers. On the other hand Michael Purdue is an eminent lawyer and his comments are carefully argued. As the fees involved are relatively small and failure to pay such small amounts could result in expensive delays to developments, it would seem unlikely that there will be a test court case on these issues. It is unsatisfactory that these provisions are not worded more clearly, but unless there is a test case we will have to presume the government interpretation is correct. JH.