Development Control Casebook: DC Forum

New queries

An outline application was made with the description "residential development and estate road". No number of dwellings was specified in the description, but in answer to question 17 on the 1APP forms it was indicated that 26 dwellings were proposed. The application was refused, one reason being that the number of dwellings was too high for the site. The applicant has submitted a new application on the same site. The number of dwellings now proposed is 20. The authority states that a development of 20 dwellings is of a different character than one of 26 dwellings, so the application does not benefit from a "free go". Is it correct, bearing in mind that the free go provisions relate to applications of the same character or description and both applications have the same description? LW.

Each planning proposal is given a description which appears on neighbour notification letters, the decision notice and other documentation and this is often taken from the application form, possibly with some amendment. In the context of free goes, I would not consider that the use of the word "description" in regulation 8 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 is intended to refer to this, but rather to what is proposed in broader terms. This is borne out by paragraph 83 of Circular 04/2008: "It is for the local planning authority to assess whether a revised proposal would maintain the character or description of the previous one, and so be eligible for the free go." Furthermore, if the description from an application form is used, an applicant could use a generic description such as "residential development" and apply for 100 houses and then just one and claim a free go. In the circumstances of your case, I am surprised that the authority will not allow a free go on a reduction from 26 to 20 houses. Unfortunately, there is no quick way to challenge the authority's view on the fee. I would suggest that there ought to be a simple mechanism whereby, say, the Planning Inspectorate can quickly make a determination on what an appropriate fee should be. At present, the only option is to lodge an appeal against non-determination and see if the inspectorate accepts it. JH.

Can you confirm that in some circumstances there is no restriction under permitted development rights to extensions to the front elevation of a house, other than height and retaining 50 per cent of the original curtilage unbuilt? This can occur in rural locations where a house's principal elevation often does not front directly onto a highway. The October 2008 amendment to the General Permitted Development Order 1995 deals in detail with side and rear extensions but appears to have no additional restrictions for a principal elevation that does not front a road. PE.

The DCLG technical guidance note Permitted Development for Householders does not really address this issue. The frequently asked questions document placed on the Planning Portal shortly after the amendment was introduced discussed this issue, indicating that the only restrictions in such circumstances are height and the "50 per cent rule". Although this advice has been superseded by the technical guidance, in this instance it must still be correct. While there will be comparatively few dwellings where advantage can be taken of this provision, those where it can be used will generally be in rural areas. In some instances it might be possible to change a "cottage" to a "mansion", undermining green belt or rural policies aimed at keeping the countryside open. I do consider this to be a provision that should be reviewed. JH.

If a parish council has an enclosed sports field and charges for its use, can it use rights under the General Permitted Development Order 1995 as amended to erect a 4m netted fence around it? Or would it be classed as a commercial site? AB.

You are no doubt referring to class A, part 12, schedule 2 of the order on development by local authorities. These rights extend to parish councils, which would not be operating the sports field as a statutory undertaker. Part 12 rights do not apply where a local authority is acting as a statutory undertaker. On that basis, I would consider this to be permitted development. JH.

Previous queries

AM enquired whether the use of a cemetery where no burials have taken place for around 100 years has been abandoned (Planning, 5 November, p9).

Cemeteries and churchyards closed by order in council retain burial rights for unfilled plots, for those purchased in perpetuity and for family vaults. All this supports JH's view that a burial use cannot be abandoned, especially if the land is still consecrated. Planning law may be unclear but burial law is not. NB.

The burial ground which prompted AM's question was a Baptist one rather than an Anglican one, so would not be consecrated land. Only an Anglican burial ground would be consecrated land. However, NB's comment does, to a small degree, support my view that the use right had not been abandoned in AM's case. JH.

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.


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