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


A parish council wishes to reuse a Baptist burial ground. The site has not been used for burials for around 100 years and is overgrown. Apart from having a footpath through the middle, it is to all intents and purposes unused. Has the burial ground use been abandoned and is planning permission required to recommence burials? Or can a burial ground never be abandoned as there will always be people buried there? AM.

- I have been unable to come up with any court cases or appeals which parallel this situation. Trustees of Castell-y-Mynach Estate v Secretary of State for the Environment (1985) laid down four tests for whether a building's use has been abandoned - the physical condition of the building, the length of time for which it has not been used, the owner's intentions and whether it has been used for any other purposes. While a burial ground is clearly not a building, it would seem sensible to apply these tests to your scenario. Although no burials have taken place for a long time, I would suggest that the use is continuing as there are still bodies buried there. The site's overgrown condition seems to be the only physical indication of abandonment and you have given me no indication of another use taking place or of the owner's intention to abandon the use. So while this is not clear cut, my inclination would be to advise that the use has not been abandoned. JH.

- We are advising a client on a proposal to discharge pre-commencement conditions. Our instructions have arrived late, leaving less than nine weeks to prepare, submit and gain a determination before the permission lapses. If an application to discharge all pre-commencement conditions is live at the time when the existing permission lapses, does a new application keep the existing permission live until the condition discharge application is determined? DH.

- This scenario closely mirrors that considered in FG Whitley & Sons v Secretary of State for Wales and Clwyd County Council [1992]. The planning authority is not obliged to determine an application to discharge the conditions after the permission has expired, but if it does and approves them this would have the effect of keeping the permission alive. It is also worth considering whether the conditions under which approvals are required are conditions precedent. This is a complex issue and I would recommend reading section Development Control Practice 6.341 for further information. JH.

- Do static caravans have permitted development rights? A court case that has come to my attention, Green v Secretary of State for Communities and Local Government and Canterbury City Council [2009], indicates that touring caravans could be ancillary to static ones. MS.

- Except for excluding flats or buildings containing flats, the word "dwellinghouse" is not defined in the General Permitted Development Order 1995. In R ex parte Lee v First Secretary of State and Swale Borough Council [2003], it was held that a building incorporating two caravans was a dwellinghouse for the purposes of the four-year rule on immunity from enforcement. I am not aware of any court cases or appeals where this issue has been considered in relation to permitted development rights. My reaction, however, would be that an ordinary static caravan would not enjoy permitted development rights. If sufficient physical additions have been added for it to become a permanent fixture it would become a dwellinghouse, although permitted development rights would only apply if it has a defined curtilage. The point at which additions change a caravan from a use of land to operational development is considered in Development Control Practice 4.3531. JH.

- Class A, part 4, schedule 1 of the General Permitted Development Order 1995 allows temporary hoardings around construction sites. There seems to be no limit on their height, unlike with conventional walls and fences. Do you know why this is so? Could not high hoardings at a road junction obstruct visibility and create a danger? MC.

- Since they are only going to be of a temporary nature, builders are unlikely to want to spend money putting up hoardings higher than security needs dictate. Furthermore, because such hoardings are by definition normally in place for a relatively short period, any harm would be short-lived if they are unsightly or cause other problems. Regarding your query about hoardings obstructing visibility splays, article 3(6) of the order precludes development from being permitted development if it obstructs the view of people using a highway used by vehicles in such a way as to cause a danger. JH.

- Are councils statutorily required to notify applicants of the right of appeal and, most importantly, explain the time limit for exercising this right? ML.

- Article 10 of the Development Management Procedure Order 2010 requires local planning authorities to send out a notification in the form specified in schedule 6 or substantially in that form when refusing planning permission or granting it subject to conditions. This specifies rights of appeal and the relevant time limits. JH.

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