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


Q: Condition A.3(a) in class A, part 1, schedule 2 of the General Permitted Development Order 1995 as amended in 2008 requires dwelling alterations, apart from conservatories, to use similar external finishes to those on the original house. In this light, my authority considers that replacing wooden windows with UPVC would normally require permission. I would appreciate your views on this. Are you aware of any appeal decisions which have considered this? AM.

A: The DCLG's recent Permitted Development for Householders technical guidance states: "It may be appropriate to include new PVC double-glazed windows in an extension even if there are no such windows in the existing house. What is important is that they give a similar visual appearance to those in the existing house, for example in terms of their overall shape and the colour and size of the frames." This suggests that such proposals need to be considered individually and a blanket ban is not justified. I would make one comment on the guidance - in assessing similarity of materials, the shape of windows and the size of frames should not be taken into account. Instead, similarity of appearance should only be assessed on colour and texture. I am unable to trace any appeals where this issue has been considered. JH.

Q: In an appeal decision where my client submitted a planning obligation to provide infrastructure payments, the inspector granted permission but commented that the contributions were not supported by supplementary planning documents, as recommended in Circular 05/2005. He was therefore unable to give weight to the obligation, except for one payment. Can the appellant seek a modification to the obligation and pay just the contribution the inspector felt justified? What if the council refuses to co-operate? Should future obligations make the payments conditional on the inspector's findings so that they are not due if the inspector feels there is inadequate justification? RH.

A: It would pay to negotiate with the planning authority. You need to verify whether there is a supplementary planning document. It may be that one exists but the authority failed to refer it to the inspector. If this is the case you would be in a weak position. Otherwise, if the council is unwilling to amend the obligation, you would need to submit a further application supported by another unilateral obligation and lodge a further appeal if this is refused. Regarding your query about whether future obligations could be conditional on the inspector's findings, I suspect that it would be difficult to draft a sufficiently clear obligation to cover all views that an inspector might express. If you want to explore this I would recommend taking legal advice. JH.

Q: How do I calculate the fee for a mixed-use development, such as ten flats and two commercial units? Is it the £3,350 fee for the flats plus the fee based on the commercial floor area, or is it based on the total floor area of the whole building? ML.

A: Paragraph 14, part 1, schedule 1 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 as amended sets out the basis for calculation. This indicates that the amount payable is the fee for the flats plus the fee for the commercial floor space. Where there are communal areas such as corridors, this is apportioned between the residential and commercial uses on the basis of each use's floor area. JH.


JH replied to DB's query on non-material and minor amendments to planning permissions (Planning, 24 September, p19).

JH notes that the section 96A procedure under the Town and Country Planning Act 1990 as amended for seeking approval for non-material amendments is a statutory one. Would this make a development which differs in a non-material way from that which was approved unauthorised unless a section 96A 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 section 96A approval. DB.

Section 96A only sets out the procedure for approving non-material amendments. Sage v Secretary of State for the Environment, Transport and the Regions (2003) indicated that a building operation is unlawful if it is not carried out, both externally and internally, in full accordance with a permission. 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 be effective. This is analogous to the situation where conditions have not been complied with. Clearly, planning authorities need to be careful that they do not end up unable to enforce conditions such as opening hours or use restrictions, though where there are no such implications it may not be expedient to enforce against minor changes from approved plans. JH.

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