DC Casebook: DC Forum

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My client owned commercial stables that included a mobile home used as an ancillary mess facility. This had been present on the site for more than ten years. He sold the stables last year, retaining one field. The new owners used the mobile home for residential accommodation and the council served an enforcement notice. The attached plan included the field my client had retained, but the notice was not served on him and he did not know about it. The new owners did not appeal against the notice, so it became effective. My client then bought back the property and the council advised him that the mobile home had to be removed in accordance with the notice. Had he known of the notice, he could have appealed on the grounds that it was a nullity, it had not been served on him as an owner of part of the site and the steps required for compliance were excessive, since the mobile home's use as ancillary mess facilities had continued for more than ten years. It is not possible to apply for a lawful development certificate as there is a valid enforcement notice, and in any event the mess facility use was interrupted by the residential use. Can you suggest a way to enable my client to lawfully retain the mobile home?

There is a salutary lesson here that one should always carry out a search before purchasing land, as this would have revealed the enforcement notice. Although your client's land was included within the enforcement notice plan boundary, I presume it was the planning authority's intention to serve the notice just on the stables and the extra field was included because it was unaware that this had been separated from the mobile home. As the mobile home was not on your client's land, it would seem that he would not have been prejudiced by failure to serve the notice on him because he had no interest in it at the time. Your client has only found himself at a disadvantage because he bought the site back and did not carry out a search. Although the council ought to have served the enforcement notice on him, a formal complaint that it failed to do this would be unlikely to be upheld as the council would argue that he should have carried out a search when he repurchased the property. I can only suggest that you explore the possibility of obtaining planning permission to retain the mobile home as a mess facility with the council. Obviously you should argue a need for this facility and point out that it previously existed for more than ten years without causing complaint. Whether your client gets permission will, of course, depend on the council's view of the situation in the light of its prevailing policies.

Is it the case that under article 7 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 you can still submit a "free go" planning application for a slightly different scheme within 12 months of an approval, subject to the conditions set out in article 7(2)? Or is this affected by the recent introduction of the new arrangements for dealing with non-material and minor material amendments? If this is still the case, then it seems to be the cheaper means for applicants to seek approval for material minor changes.

An applicant could indeed take advantage of the free go rather than submit a non-material or minor material amendment application. The new provisions do not take away the free go right. The potential disadvantage of using this route, however, is that an applicant is only allowed one free go and cannot exercise the right for any other future scheme on the land. Once this has been used, it cannot be used again. This factor is particularly likely to be an issue if the applicant might be putting in an application that would involve a higher fee in the future.

An applicant wants to insert a mezzanine floor in a retail unit and this requires planning permission. He claims that the fee should be based on the "other operations" category 9 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 as amended. I would have thought it should relate to the increase in floor area. Can you advise?

Paragraph 48 of Circular 04/2008 indicates that mezzanines should be assessed in the "other operations" category. No explanation is given for this, however, and I do consider it somewhat strange advice. The other possible category would be category 2, covering the erection of buildings. A conventional extension to a retail unit would certainly be assessed under this category, no doubt on the basis that the term "building" must include part of a building, although the regulations do not actually say this. So would an alteration that does not increase floor area, like a new shopfront. However, government advice is that mezzanines should be included in category 9.


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