Infrastructure developments Q & A DCP Section 26.4

This section is concerned with infrastructure development proposed by government agencies, local government departments, various statutory undertakers and privatised public utilities. Minor structures, even street furniture, associated with such developments are also considered here. Telecommunications developments of all kinds are discussed at (28), hospital developments at (26.2), recycled energy schemes at (26.5) and motorway service areas at (16.3). Leisure flying is included in chapter (18.2).

Q & A    26.4/10

I have been asked to examine a planning application for a client relating to wind turbines.  The area of the application is shown as two parcels one each side of a public highway. Surely this is an invalid application, as a separate application should have been submitted for each parcel?

There does not seem to be any provision in planning law or ministerial advice to suggest that a single planning application for an integrated use covering 2 parcels separated by a public highway is invalid. Certainly there have been planning appeals covering split sites where the issue has not been raised including motorists service areas on opposite sides of main roads.

If current reports are to be believed we are shortly to suffer a proliferation of gaudily painted speed cameras. These clearly fall within the definition of development but I know of no provision within the GPDO which permits their erection without the need to apply for permission. Local authorities and highway authorities are able to undertake certain works but these are generally required to be in connection with their statutory functions, which does not include catching speeding motorists. The police do not enjoy a similar permission within the GPDO. Would you agree that permission is required?

There is no specific permitted development right given to police authorities. This leaves me to consider whether Part 12 of the GPDO referring to development by local authorities could be applicable. Here a wide range of what could be termed street furniture is stated to be permitted development. However, due to the fact that since 1995 police authorities in England and Wales have been constituted as bodies separate from local government it would seem that Part 12 rights cannot be applicable to them. The mischievous side of me would dearly love all these ugly hulks to come within planning control, but I cannot imagine that this point has not been explored before. I look forward to receiving any input from readers.

My council have taken enforcement action against Railtrack relating to the erection of high fencing erected adjacent to a railway embankment. The construction takes the form of a galvanised palisade 2.4 m in height topped by mesh taking the whole to 4.2 m.  Located on a footway serving the rear of residential property the effect on amenity may be described akin to being in prison. Railtrack argue that the fence is permitted development by reason of Part 11 of the GPDO and quote the Railway Clauses Consolidation Act 1845 in support.  Do you have a view on this matter?

Part 11 refers to development authorised by local or private Acts of Parliament. If still on the statute book such an Act which specifically designates the nature of the development and the land on which it is to be carried out, could be brought into play. Certainly the Railway Clauses Consolidation Act is still operative and gives a wide ranging continuing power to do all acts necessary for the making, maintaining, altering or repairing or using a railway. Whether the construction of peripheral fencing falls within these powers is, however, a matter for a legal opinion. It also has to be considered whether Part 17 of the GPDO permits the fence in dispute. Here it needs to be argued whether the erection of security fencing is development "required in connection with the movement of traffic by rail", and it is by no means clear cut as to whether this includes fencing.

A windfarm has been developed opposite my property where approved diagrams, photomontages and written predictions have not been adhered to. Turbines which I was persuaded would not be seen or heard are now apparent. The developers have agreed to compensate us but have asked us to come up with an amount. I need to have some idea from previous cases giving some idea of the sum of money that I should suggest to them.

I assume that there is nothing your local planning authority can do to remedy what appears to be a substantial departure from approved plans. I am aware of a previous Ombudsman case concerning a complaint concerning a wind farm in Cornwall but in this case no maladministration was found and therefore there was no discussion of compensation. However, the general approach of the Ombudsman to establishing compensation where property value has been affected may be of interest as in the Blyth Valley case reported above* relating to a telecommunications mast. Here it was recommended that the basis of compensation should be the independently assessed difference in property value between a) the mast sited where it should have been and b) the mast sited where it had been erected.

My client is a government body which provides an appeal service. It proposes to move to a building which has a B1 office permission. Although the majority of the work carried out on the premises is an administrative office use, the council has stated that the use is sui generis and therefore permission for a change of use is required. However, the landlord does not want to forfeit the B1 office use and so we consider that a flexible use should be sought. The council has stated that we could apply for a dual use (part 3 class E of the GPDO) but after 10 years the lawful use would be that in operation. Can we not apply for a flexible use where either B1 or a sui generis use can operate at any time in perpetuity?

The first issue here is whether this local authority’s assertion that your client’s proposed use is sui generis, is well founded. Looking at the review of relevant cases in Development Control Practice at 4.3341 it seems that governmental premises are likely to fall outside class B1(a) only when they contain specialised accommodation, such as committee rooms or chambers where the decision making functions of government are carried out rather than its day to day administrative processes. I do not know the precise nature of your clients use, but this point is well worth query before jumping through the hoop of flexible planning permission procedures. This aside, another legal aspect of this situation worth exploring is whether the existing B1 permission would in fact be lost were approval given and taken up for government offices. It would appear from the complex case law on this subject that a lot may depend on whether the original B1 use has been implemented. If not it seems possible that this permission may be acted upon at a future date.

Response

A simple solution might be to seek a temporary permission to coincide with the length of the lease. Under the provisions of section 57(2) of the Town and Country Planning Act 1990 there would be an automatic right to revert to the B1 use.

I belong to a tennis club which is owned by a county council and is situated within the grounds of the council offices. The club comprises part of the council’s sports and social facilities and comprises four hard surfaced tennis courts. The council has decided to use two of the courts to provide overflow parking for its staff, although the courts will still be available after 5.30 pm. Double gates have already been formed in the existing mesh and a tarmac road laid to this.  My question is two-fold (i) is planning permission required for a change of use to mixed use of the tennis courts and parking: (ii) was permission required for the laying  of the access road?

The answer to the first part of your question depends on whether the whole of the council offices, including the courts, may be regarded as one planning unit. If so, then a use of an area for sports facilities for staff would be ancillary to a primary use as council offices. It is then open for another ancillary activity, in this case parking, to replace the tennis courts without a material change of use occurring. I rather suspect that this is the scenario in the case you describe, although it is always possible that the tennis use may be considered a separate planning unit. In this instance the mixed use of the land for council parking and a tennis club activity could possibly be considered to constitute a material change from that existing. As to the roadway, this would normally require planning permission but may well be permitted development under Part 12 of the GPDO.

Many rail operators have used sidings and so on for the provision of car parking for their customers, under the terms of part 17 of the General Permitted Development Order 1995 (GPDO). A natural extension to this would be the erection of structures on such land so as to provide more car parking space, perhaps including an ancillary store/office. I expect all such development is permitted by the GPDO but have there been any decisions to the contrary?

Part 17 allows railway operators to undertake development on their operational land, but an attendant condition states that unless "wholly within a railway station" the "construction or erection" of a car park is not permitted. This seems to indicate that a building to be used as multi-storey car park is not permitted development unless confined within the structure of an existing railway station, but part 17 does not specifically refer to the position regarding the use of open railway operational land in the vicinity of a station as ground level parking for staff or passengers. My inclination is that such a use is permitted development, but there have been no cases of which I am aware to have tested this point.

My authority has a case where a 3 storey block of prefabricated offices used by contractors working to upgrade a railway line has been constructed on the service yard of the station’s former parcel depot. Is it permitted development under Part 17 Class A of the GPDO because it is "required in connection with the movement of traffic by rail"? This is debatable, and if so does it meet the requirement of being "wholly within a railway station"? The building is on railway land, adjacent to the station buildings but not within them. My interpretation is that the type of development defined by Part 17 includes newspaper kiosks, mess rooms and ticket offices constructed on station platforms or within booking halls. However, this does not include any kind of office beyond the station building, such as on a station car park, servicing areas or adjacent sidings. What is your view?

Although the scope of this Class has been considered by the courts, I am not aware that the phrase "wholly within a railway station" has been defined. The recently published Review of the GPDO commissioned by the ODPM acknowledges that this has given rise to disputes and "can be considered for example as comprising just the station buildings and the platforms or the entire demise of the station including the station forecourt, transport interchange area and car parks". Particular problems are reported on the latter. My own view, based on the exclusions outlined at A1 (c) (ii), is that those who drafted the Order probably intended that the wider interpretation be made. Works required in connection with the movement of traffic by rail have been held to include buildings, plant, storage and loading/unloading facilities. In this instance, therefore, there appears to be a good case for the office building being considered as permitted development.

Response

As a comment on the query regarding permitted development and statutory railway undertakers in Greater London a definition was included in the GLA Act 1999 at s239 which defines 'station' as meaning "any land or other property which consists of premises used as, or for the purposes of, or otherwise in connection with, a railway passenger station or railway passenger terminal (including any approaches, forecourt, cycle store or car park), whether or not the land or other property is, or the premises are, also used for other purposes".

An electricity supplier wants to remove a high voltage line. The Electricity Act 1989 does not cover removal of apparatus.  Whilst Part 17 of the General Permitted Development Order would allow them to replace the apparatus, which implicitly requires removal, it does not explicitly allow it. The provisions related to demolition do not seem to apply to apparatus. Perhaps dismantling is not development, although it would seem to be an engineering operation. The works will require a newt licence from Natural England.  Natural England asks for evidence that planning permission exists or is not required.  Logically removing redundant apparatus is the responsible course of action, but it would seem to require an application. What are your views? DB.

I agree removing a power line seems to be an engineering operation, so planning permission would be required. You need to discuss this with the appropriate local authority and see whether they agree this requires planning permission and then make a planning application or lawful development certificate application as appropriate. JH.


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