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 preparing a lawful development certificate (LDC) application for seasonal camping and caravans on a field. In pre-application discussions, the council indicated that it wants to show the number of tents and touring caravans allowed in the certificate but will not say how it will determine this figure. While this approach is acceptable for static caravans, I do not see how this can work for tents and touring units because their numbers fluctuate enormously. What is your view? PW.

I believe that the council's stance is correct. Paragraphs 8.16 to 8.22 of Circular 10/1997 advise planning authorities to be very specific when granting LDCs for existing uses to indicate the limits of a use that has become immune from enforcement action. It may be difficult to specify limits where the extent of a use has fluctuated, but this problem is not insuperable. In this case, the LDC could indicate the average and maximum number of units. If the landowner exceeds these limits, this does not necessarily mean the use is in breach of planning control. The limits are intended to be a marker so that if the use subsequently intensifies to a scale that results in a material change, the planning authority is not barred from taking enforcement action, which it would be if the limits were not defined. Some of these issues were discussed in an appeal involving touring caravans in East Sussex (DCS Number 040-963-228). JH.

I am dealing with an application for a single dwelling on a greenfield site. Our local plan states that residential development should be located on previously developed land within the defined development limits. The application is thus contrary to the local plan and will be refused on this basis. However, does this automatically mean that the application is a departure as it is contrary to the local plan and needs advertising as such? CR.

Article 13 of the Development Management Procedure Order 2010 requires proposals not in accordance with a development plan to be advertised with a press and a site notice, so this proposal should be advertised thus. It must be borne in mind that the purpose of advertising and other forms of consultation is not to seek objections but rather to obtain views on applications, whether in favour or against. Although this is perhaps unlikely in the circumstances of your case, the applicant could claim that consideration of the proposal has been prejudiced if the proposal is not advertised correctly because letters of support might not be forthcoming as a result. JH.

PREVIOUS QUERIES

MM enquired whether a flood risk sequential test has to be undertaken for a barn conversion (Planning, 8 October, p19).

Paragraph D15 of PPS25 states that applications for minor development and changes of use should not be subject to the sequential or exception tests. The minor development definition in footnote 7, page 7 of PPS25 specifically excludes development that would create a separate dwelling within the curtilage of the existing dwelling, such as through subdivision of houses into flats. Although paragraphs 4.40 and 4.41 of the associated good practice guide come under the heading "Redevelopment of an existing single property", the advice also states: "Where an individual proposes to redevelop property in an existing flood risk area, the consideration of alternative sites is not likely to be a realistic option." The practice guide is saying that for redevelopment of property on a like-for-like basis, as in a replacement dwelling, it is not reasonable to apply the sequential test.

Paragraph 4.41 it goes on to state: "It is important that where there is a proposal to create additional dwellings it will need to be considered as a new development according to the increased vulnerability that would be created as a result. It would be reasonable for a local planning authority to require an applicant to assess alternative sites through application of the sequential test." The issue in question is not whether what is proposed is a change of use but whether the conversion involves the creation of additional units and increases flood risk vulnerability. Clearly in this example it does both increase the number of units and flood risk vulnerability, so in accordance with the guide the conversion should be dealt with as a new development in terms of the sequential test. The Environment Agency agrees with such an approach to requiring a flood risk sequential test in this eventuality. JO.

JO's point is well argued and would seem to be correct if the Environment Agency supports this view. Even so, the guidance is not very clear on this point and it would be preferable for it to have been better worded. JH.

JA asked what measures are available to control displays of potentially offensive garage posters (Planning, 8 October, p19).

As per JH's response, I am not aware of any planning legislation that might be used. However, I wonder if section 5(1) of the Public Order Act 1986 might be used if children are being caused harassment, alarm or distress. Rather than being a planning matter, this approach is likely to require a properly briefed police officer to visit the resident. MH.


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