DC Casebook: DC Forum

Email your queries or your replies to earlier queries to casebook@haymarket.com or post them to Development Control Casebook Forum, DCS Ltd, Casebook Suite 1, Fullers Court, 40 Lower Quay Street, Gloucester GL1 2LW. Comment and post at PlanningResource.co.uk/forum/dc.

NEW QUERIES

I am dealing with a barn conversion scheme creating four dwellings. No extensions are proposed and a considerable number of other buildings will be removed. The site is in flood zone 2 and the Environment Agency has accepted a site-specific flood risk assessment accompanying the proposal. The planning authority has now requested a sequential test. Paragraph D15 of PPS25 says sequential or exception tests are not required for changes of use but the council says it requires one under paragraph 4.41 of the good practice guide. The council also indicates that it requires the sequential test to be on a district-wide basis and will not offer any advice or guidance on "reasonably available" alternative sites. Do we have to do a test and, if so, what would constitute a reasonable alternative site, given that the barns only exist on this site? MM.

Paragraph 4.41 of the guide is under the heading "redevelopment of an existing single property", whereas what you propose is a change of use. This is covered by paragraph 4.42, which makes clear that changes of use should not be the subject of sequential and exception tests. Furthermore, as you point out, attempting a sequential test for a change of use is not feasible. If the authority insists on a test, I would advise appealing against non-determination. JH.

What is the validity of a planning permission if it subsequently transpires that the ownership certificates have not been properly completed? DD.

Any planning permission granted would still stand unless quashed by judicial review. The court ruling in Main v Swansea City Council [1984] held that in deciding whether to quash a permission, the nature of the irregularity is important. It stated that in assessing the legitimacy of a decision made with irregularities in ownership certificates, the courts should have regard to matters such as the identity of the applicant for relief, the lapse of time and the effect on other parties and the public. In that case, a small part of an application site was owned by a person then unknown and the correct notification procedure was not followed. This might have been sufficient for the court to strike down the permission in some cases, but in this instance three years had elapsed and the court exercised its discretion not to do so. JH.

An applicant proposes new homes on land adjacent to a designated village green which is presently overgrown and unmanaged. The application also proposes that the village green will be planted with trees and hedges and footpaths laid. The applicant will need to apply to the Planning Inspectorate under the Commons Act 2006 for consent for these works. However, do the works to the village green also need permission? If so, what are the relevant national planning policies? KS.

The lawful use of the site would presumably remain as informal recreation, so there would be no change of use involved. Laying of footpaths and any other operational development would, however, require permission. There are no generally applicable national planning policies relating to such development but some may be relevant to the issues, such as PPG2 if the site is in the green belt or PPG9 if the proposal raises biodiversity issues. JH.

A resident has put a poster depicting a blood-stained tiger on his garage door. The image is very realistic and is frightening children. A neighbour has queried whether it requires planning permission. As the property is a dwellinghouse, the image seems to be permitted development. It does not appear to be an advertisement as it is not "employed wholly or partly for the purposes of advertisement, announcement or direction". There are a number of websites selling such products and it seems likely that garage poster use could increase. We would be interested to know your views on whether you consider they can be controlled through planning or other legislation. JA.

I agree that this is not an advertisement. However, it could be argued that putting up the poster is development as an "other operation" like painting on the basis that it is intended to be relatively permanent, though I consider this argument weak. If it is considered to be development, it would not be permitted development under class A, part 1, schedule 2 of the General Permitted Development Order 1995 as amended because it does not use similar materials to the rest of the dwelling. I am not aware of any other legislation that could be used to control this poster. JH.

PREVIOUS QUERIES

AH asked whether parish councils are entitled to a reduction of fees for approvals under conditions (Planning, 17 September, p19).

- The Planning Portal fee calculator allows the discount to be applied. While it is for the planning authority to check that the correct fee has been submitted, this seems misleading to customers. DB.

- I have rechecked the legislation and cannot see any authority for a discount for parish councils for approvals under conditions, so as far as I can see the portal calculator is incorrect. JH.


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