Casebook: DC Forum

Planning, 27 June 2008

NEW QUERIES

I own a detached piece of unfenced land which was conveyed with my house in 1961, when it was designated garden ground. At that time the land was grassed in the form of a lawn rather than wild grass but there was nothing further to indicate that the previous owner had used it as a garden. A planning officer now claims that as I cannot prove that I have used the land as a garden in the intervening period, it has now reverted to agriculture. Is he wrong in this assertion and do I have a case to claim that the land is part of my curtilage? I do not want to have to apply for planning permission and pay a fee to use the land as a garden.

The plan supplied with your query shows that the plot concerned is to the other side of an access way which other householders use in common running to the rear of your house. The land is not immediately to the rear of your existing garden but is offset by 40m.

In planning law, it is possible for the use of land to be abandoned, so that to resume its original use would be a material change of use requiring planning permission. In this particular instance, there would seem to be a reasonable case to be argued for abandonment, since the plot is physically separate from your main residential curtilage and there has been no evidence of domestic garden use for almost 50 years. In your favour is the historic linked ownership.

To help resolve this matter a cheaper course of action, rather than applying for planning permission, would be to ask for a lawful development certificate for proposed use or development. The fee for this is half that for a conventional application. Alternatively, you could simply fence the land, for which no express permission is required, restore the lawn, and wait to see if your local authority cares to serve an enforcement notice. In both cases there is a right of appeal to the Planning Inspectorate.

- My authority has received an enquiry from a member of the public regarding the replacement of an existing flat roof with a pitched roof. The single-storey element is to the side of a two-storey residential property. Would this be dealt with by reference to class A or class B, part 1, schedule 2 of the General Permitted Development Order 1995 and are there any restrictions as to height? Criterion (a) in class B states that development is not permitted if "any part of the dwellinghouse would, as a result of the works, exceed the highest part of the existing roof', but does this refer to the main two-storey part or just to the specific part of the single-storey element?

The proposal should be considered under class B, since criterion (h) under class A.1 excludes works that "consist of or include an alteration to any part of the roof". The judgement in London Borough of Hammersmith and Fulham v Secretary of State for the Environment [1993] confirmed that the "highest part of the existing roof" refers to the dwelling as a whole and not the particular part of the roof on which works are to be carried out.

PREVIOUS QUERIES

In the past you have considered the case of a flat development where a developer could avoid the threshold for triggering an affordable housing requirement by applying for a lower number of units and then at a later date applying to subdivide several units. If such an approach is to succeed, does the original development have to be constructed and the residential use implemented, or is it sufficient just for the development to be completed? DB.

My earlier reply (Planning, 21 September 2007, p29) pointed to various appeal cases in which housing schemes falling just below the affordable housing threshold have been rejected as underdevelopment because the site in question has potential for more units.

Situations in which permission has already been granted for a new-build or conversion scheme just under the threshold and a developer comes along later with plans for additional units can possibly be dealt with by specific planning policies or supplementary planning guidance designed to circumvent this form of threshold manipulation.

Without any such policy back-up, it may be difficult for a local authority to justify a ground of refusal of a subsequent application on the basis that no affordable housing has been provided for the cumulative on-site total. I do not think it would make much difference in policy terms whether the initial development has been occupied or not.

- I was interested to read in Forum (Planning, 14 March, p27) of the intriguing problems and issues surrounding the degree of permanency of a mobile home and whether the four-year or ten-year rule is applicable. Are you able to supply any follow-up case law or comment? RL.

This difficult issue is regularly rehearsed at appeal and is dealt with in Development Control Practice 4.353. Cases of note determined this year include one from Surrey (DCS Number 100-052-341) and another from East Sussex (DCS Number 100-052-387). Both of these contain legal citations which you may find of interest.