Making/processing planning applications Q & A DCP Section 5.1

In England, the making/processing of planning applications is governed mainly by the Town and Country Planning (Applications) Regulations 1988, as amended, and the Town and Country Planning (Development Management Procedure) (England) Order 2010 (DMPO), which from 1st October 2010 consolidated and replaced the Town and Country Planning (General Development Procedure) Order 1995. The background to the new order is outlined in an accompanying explanatory note and a letter sent by CLG to chief planning officers on 9th September 2010.

Q & A    5.1/10

My firm has paid a full planning fee for a housing development application. After consultation with the local authority to secure an acceptable scheme, the layout of the affordable units was redesigned and an access point removed. The authority now consider this a fresh application requiring a new fee. Is this reasonable?

Circular 31/92 only deals specifically with the scenario where a revised application is submitted after refusal or withdrawal but the general thrust of this advice would seem applicable to the case in point. Therefore if the application as revised is not materially different from that originally submitted in terms of character and description then a fresh application and new fee is not required. However determination of such a matter is for the discretion of the local authority in question, and as shown in R. v South Holland District Council ex parte Hey and Croft Ltd 20/12/1991 the courts are likely to be unwilling to intervene in any interpretation dispute unless there has been a clear abuse of power. It is, of course, open to you to appeal against the non-determination of your revised proposals which will inevitably occur if the local authority does not consider that a fee has been paid. It will be interesting to hear of the experience of others involved in similar argument with a local authority.

Response

I had a similar case some years ago and had an item published in Planning about it (see issue 1082 19 August 1994). If the local planning authority decide a new fee is required there appear to be no disputes procedure. An appeal against non-determination is an option, but my experience was that the Inspectorate will not get involved. It put the ball back firmly into the planning authority's court. I even tried the Department of the Environment in London but got the same result.  The final decision lies with the planning officer, take it or leave it. I had to pay my fee again.

I have been asked to examine a planning application for a client relating to wind turbines.  The area of the application is shown as two parcels one each side of a public highway. Surely this is an invalid application, as a separate application should have been submitted for each parcel?

There does not seem to be any provision in planning law or ministerial advice to suggest that a single planning application for an integrated use covering 2 parcels separated by a public highway is invalid.

Certainly there have been planning appeals covering split sites where the issue has not been raised including motorists service areas on opposite sides of main roads.

In Scotland it is the responsibility of applicants to carry out neighbour notification. The relative Order gives a definition of "neighbouring land" but there seems to be no requirement for the application site to be the same as the planning unit. Is there anything to prevent an applicant drawing the application site more tightly around the proposed development, thus avoiding the need to notify so many neighbours?

I assume that the idea would be that a "buffer" of owned land around all or part of a development site would be provided, which would be the "neighbouring land" for the purpose of notification. To satisfy the Order all that would be required is that the applicant notify himself, so long as the "buffer" were more than four metres. I can find no Scottish appeal decisions where this device has been discussed. Have any readers any experience of this matter?

Please can you advise me as to the rules relating to the control of development whereby highway and other statutory and non-statutory bodies become involved in the pre-construction process?

In most cases such involvement has a statutory basis i.e. where such bodies are cited as formal consultees in such documents as the General Development Procedure Order 1995.  The  extent to which the views of such bodies are given weight in the decision making process relating to planning applications varies according to the circumstances of each case, and it is not unknown for these to be rejected.

I have submitted an outline planning application with all matters reserved. The council validated the application and requested details of the means of access, siting and design. I do not wish to incur architects fees if the council is likely to object to the principle of the development. Can the council's request be challenged?

Article 3 of the General Development Procedure Order (GDPO) 1995 provides that where an outline application is made, the council may decide that the application cannot be considered separately from all or any of the reserved matters. Any request must be made within one month beginning with the date of the receipt of the application. Therefore the first possible challenge could be if the council delayed the registration of the application and its request exceeded the one month period. Failing this, article 23 of the GDPO provides you with a right of appeal to the secretary of state. Sub paragraph (2)(c) of article 23 states that where the authority has served notice under article 3(2), that it requires further information and this has not been provided, an appeal my be lodged.

I am not aware of any other basis for challenge and indeed article 23 is intended to act as a remedy to applicants who disagree with the request for additional information. If this route is chosen you clearly need to be sure that an inspector would be able to fairly consider any issues raised with the additional information.

My client has been served a section 78 notice under the Building Act 1984.  The building to be demolished lies in a conservation area. Does the requirement to demolish this dangerous building supersede the need to first gain conservation area consent?

The Direction made by the secretary of state relating to exemption from the need to seek conservation area consent to demolish, does not list a building subject to a dangerous structure notice. PPG15 at B.16 confirms that conservation area permission would be required first.

I note with interest that in a recently reported Ombudsman case (Planning 18 May 2001) a district council was praised for "acting generously" in waiving the fee for a planning application. I would be interested to know under what power this was done as my reading of the Fees Regulations with respect to exemptions does not appear to cover acts of generosity?

As far as I am aware local authorities do not have a discretion to 'waive' fees where one is payable in accordance with the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989. Regulation 3(3) states that where a fee is due in respect of an application, the fee shall be paid to the local planning authority. Regulations 4, 5, 6 7 and 8 set out exceptions and a fee would not be payable for example if it related to the provision of a disabled access to a building. However under normal circumstances where a new application is being made, a fee would become payable and therefore there is no discretion under the regulations. Indeed, local authorities have to be mindful about satisfying the district auditor in financial matters. It is not clear from the ombudsman case which power the council relied on in waiving the fee.

I have obtained planning permission for a single dwelling on a plot in a village. The line of the village development boundary runs across the site but is not related to any existing ground feature. This boundary is shown in the village plan as a thick black line which when scaled off measures some six metres in width on the ground.  I am being required to keep the siting of my dwelling within the inside edge of that band. Which is the correct edge that should be used?

Normal cartographic convention is that an edging on a plan drawn to define a particular area of land will lie within that land. This would suggest that it is the outside of the thick line which is the limit of development in the case you cite. A useful check on what was the intention of the draughtsman is to examine the village development boundary as a whole and look for situations where it was obviously intended that it follow existing physical features such as fence lines etc.
It will then be possible to establish whether the line has been drawn inside or outside such features, and interpolate that finding to the boundary that crosses your site.

My local authority advertises applications for purely internal works to Grade II listed houses. I think that it was unaware that this is not a statutory requirement until I pointed this out. Now it now says that it will continue to advertise because "there is no prohibition on the local planning authority publicising such applications, and the advertising of the applications is consistent with the council's policy of consultation".
Is such consultation a worthless exercise as how can neighbours have a valid reason for objecting to any internal work?

There is no reason why this local authority should not advertise listed building consent applications for internal works. Taking a wider "heritage" view of the matter, internal alterations to listed buildings should be a matter of concern to the community, even though they may not be in the public domain.  What is the practice of other local authorities?

I have obtained outline planning permission for a dwelling with a 40m long rear garden. I wish to reduce the garden length to 20m -all other boundaries and details of the development remain the same. I have been informed that a new application must be made but I disagree. Your advice please.

When determining whether reserved matters fall within the ambit of an outline planning permission the courts have allowed a little freedom of interpretation. The usual test to be applied is whether any changes make a material difference to the essence of what was approved. Clearly this is a matter of fact and degree to be determined in the individual circumstances, but from the details that you have provided you would seem to have a good case.

Recent legislation has introduced a raft of information to be produced before an application may be determined, for instance bat surveys, details of septic tanks, design statements. This inevitably leads to delays during the processing of an application and decisions falling outside the 8 week period. My authority is considering refusing applications unless the necessary information is submitted at the outset, but are concerned that this would be contrary to planning legislation. We have heard that other authorities follow this route. Can you advise?

The problem for local authorities with regard to the 8 week rule is that the clock starts to run from the receipt date recorded on the form of acknowledgement. According to the General Development Procedure Order 1995 such an acknowledgement is to be sent out as soon as possible after receipt unless the application is invalid. An application is legally valid if the criteria in the Order are satisfied in terms of the submission of the correct forms, plans, certificates and fee. Therefore, any further requirements that may be necessary in order for an application to be determined, may not legally delay the onset of the eight week rule.

It has been the practice of this council to use a roads and sewers application, which shows plot layouts and includes the entire site area edged in red to, in effect, establish a residential permission on a site. Under these circumstances, while the development of each individual plot is treated as requiring full planning permission, the implementation of these individual dwelling permissions or the commencement of the road or sewer works has been treated as a "life time" housing permission. This is on the basis that the road and sewers have committed the council to the principle of residential development. This practice has been of concern to our policy section and it is on this basis that we seek your views.

Your council's approach does not reflect the conventional procedure where an outline application is submitted first followed by application for the approval of reserved matters. From the details you give it may be that your council's approach is legal, but I wonder whether it is good practice. It could lead to permissions for housing being kept alive which are in conflict with later changes of policy, particularly in the light of the new approach to housing land provision contained in last year's PPG3 revision.

Can the red line boundary of a planning application ever be changed to increase the site area? It has been suggested that this is possible at the discretion of the planning authority for changes of a 'minor nature', but how minor?

Ministerial advice on this subject is that it is sensible and time saving to allow applicants for planning permission to amend details of applications provided the amendments do not materially change the character of the development. The main pitfall for local authorities to avoid is to agree changes which alter the basis of the proposal as was originally the subject of advertising and consultation. Clearly many minor amendments to a site boundary are not matters to which further objection could be reasonably raised. However, in a confined situation it is possible to envisage that even a small alteration could be held to be material. The answer to your question is that small boundary changes may be permissible by agreement without further consultation, but it is a matter of fact and degree as to when such changes become material.

My authority has recently started refusing to accept applications for listed building consent unless accompanied by a "conservation plan". For guidance, applicants are referred to the Heritage Lottery Fund model plan. I have even had a simple application to alter modern doors on the rear elevation of a grade 2 cottage not accepted until I put together some form of words to satisfy this requirement.  Is the practice legal, and how do I challenge it without incurring further delays for clients?

The relevant legislation states that applications for listed building consent may include "such other particulars as may be required by the authority". Therefore a requirement for a "conservation plan" is quite legal. Even without such a plan being formally requested it is sensible for an applicant to submit such details in order to support a scheme involving a listed building. However, in the type of case that you cite where insignificant works to a listed building are involved it seems unreasonable to require applicants to concoct a notional "conservation plan" in order to satisfy the letter of local authority policy.

My company is purchasing a small residential development site that benefits from an outline planning permission. Within the red edge of the outline site is land designated as "important open space and frontage". We are about to submit a reserved matters application but the LPA state that this "open space" must be kept free from development. Surely all of the site is now available for development?

It would normally be the case that where there is a crucial restraint on the development of a site, a condition is imposed on an outline permission requiring compliance with that restraint at the reserved matters stage. This is the course of action advised in Circular 11/95. I am in no doubt that the provision of a substantial amount of open space would be considered a matter crucial to any future development as it would have a major effect on layout and the number of dwellings that could be built. Appeal cases have shown that  reserved matters conditions which refer to "siting" or "landscaping" do not provide control over non-incidental open space. On the face of it I would think that your company has a good case to pursue on appeal.

Are fees in respect of planning applications subject to Value Added Tax? HG

So far as I understand it fees are not subject to VAT, but I cannot find any reference in the relative Regulations and Circulars. Does any reader know of a definitive statement on the matter?

Response

I am a development control officer and can confirm that VAT is not payable on fees for planning applications. I understand that this is a matter of finance law rather than planning law. It was explained to me by our finance officer that local authorities do not have to include VAT on any of their services or products, if that service or product can only be provided by the local authority, for example determinations of planning applications. This contrasts with building control applications as such approvals and inspections which can be undertaken by the private sector.

The 6th VAT Directive 77/388/EEC Article 4.5 as substantiation states that public authorities shall not be considered as taxable authorities where they collect dues, fees, contributions or payments in connection with their activities or transactions. He also quotes paragraph 3.3 of VAT notice 749 which states that a local authority acts as a "public authority" when it carries out activities for the service of the community under a special legal regime applicable to it, rather than under the same legal conditions as those that apply to private traders. For example, when the law gives it the right to make people or organisations pay for a service, without giving them any say in what is provided and how it is provided.

I am the owner of a lease on a flat. Can the freeholder obtain planning permission to develop the roof space above my flat without obtaining my consent or that of the other leaseholders in the block?

The question of whether leaseholders consent is needed for these works to go ahead is a contractual matter. However, when planning permission is sought your views, and those of your neighbours, will be invited as part of the normal consultation processes. Appeal cases have shown that the effect of flat block additions upon existing residents will be given weight as a material consideration. For instance in a decision from Wandsworth an inspector stated that while private interests were involved, loss of amenity and increased noise, properly gave rise to public concern.

Article 8 (2)(b) of the General Development Procedure Order 1995 (GDPO) requires the advertising on site and in the local press of all planning applications which do not accord with the provisions of the development plan in force for the area.

Since many detailed policies such as residential design guides are incorporated into local plans this seems to imply that where, for example, a new house does not have the requisite garden size or distance from an adjacent dwelling, this should be advertised as a departure. This seems to be unrealistic and not what the legislation intends but I am not sure where the line should be drawn. Has anyone developed a rule of thumb which helps?

Can any readers assist ?

Despite an exhaustive search of the Advertisement Regulations  and the GDPO I can find no specific requirement to notify neighbours, display site notices or publish public notices in newspapers concerning applications for advertisement consent. Is this correct and have my council been needlessly paying for public notices?

There is no statutory obligation for local planning authorities to publicise advertisement applications. However, to do this may not be seen as a waste of public money if it enables the views of those affected and the wider community to be made known, thus contributing to the quality of decision making.

A planning authority has unilaterally withdrawn my client's application for listed building consent. My understanding is that it has no such power, and that an application can only be withdrawn by the applicant or agent, but I can find no reference anywhere to support my client's view.

I am not surprised that you found no specific enablement available to a local planning authority to "withdraw" a planning or listed building application. It may, of course, decline to deal with an application if it is not made in the form prescribed by law, or in the circumstances set out in section 70A of the Town and Country Planning Act 1990. I would have thought that in the situation you describe an appeal may be made against the planning authority's "failure to determine". There is court authority for the fact that the Planning Inspectorate would then be obliged to accept the appeal if the original application was validly made.

My authority has requested an extension of the determination period in respect of a major development proposal. The applicants have not responded to that request. Should determination proceed and is there any case law on this subject?

This situation arose in a 1994 appeal case related to the extension of a motorway service area at Knutsford. Here, the local planning authority decided the original application well outside the statutory eight week period and without the written consent of the applicant. The secretary of state held that the statutory eight week period was directory and not mandatory, and noted that the courts had held that a decision issued out of time could be treated as valid if accepted and acted upon. He noted that this had been the case, and the council's refusal was therefore valid.

The judgment normally cited in support of the above view is James v Ministry of Housing and Local Government [1967].

I have always understood that the presentation of illustrative material to support an outline application was just that. It provided an indication of a possible form for the development applied for but did not exclude other possibilities within the same application description. In two recent applications which went to appeal both the LPA and the inspector placed much emphasis on the illustrated schemes and little if any consideration was given to the range of options which would be feasible. I would be interested in your comments.

Circular 11/95 at paragraph 44 advises that plans submitted with outline applications must be considered as part of the application, unless applicants state they are intended for illustrative purposes only. The guidance adds that unless these details are withdrawn, local authorities cannot reserve them for subsequent approval. It seems advisable in a case such as yours that details submitted as only being illustrative of one  possible layout solution should clearly indicate so on the application form and boldly on the plan itself. You might find it useful to refer to the court judgments on this subject Clarke v Secretary of State for the Environment & Brighton Borough Council [1993] and Homebase v  Secretary of State for the Environment [1994].

I am making a planning application for a conservatory at my house and am being required by the planning authority to provide an extract from the ordnance survey map showing the general location of the property. However, the authority makes a charge of £18.00 to provide a photocopy of the relevant section, which seems excessive. Why do I need to provide a map in the first place when the whereabouts of my house may be fully identified by street name and house number?

The Town and Country Planning (Applications) Regulations 1988 state that "an application for planning permission shall…be accompanied by a plan which identifies the land to which it relates". The provision of a plan showing the planning application land in relation to other land or features is therefore a mandatory requirement, and an ordnance survey extract is universally accepted as the best way to achieve accurate identification. I understand that LPAs are bound to make a reasonable charge for reproduction of ordnance survey information held by them by the terms of their licence, but the level of that charge is at their discretion. Your frustration in having to pay a substantial amount to procure a location plan which in practical terms may not seem strictly necessary is appreciated. However it is my experience that an authorised supplier of ordnance survey maps would be likely charge you considerably more than the average planning authority.

It is interesting that, when the boot is on the other foot and LPAs are taking enforcement action, the courts have held that the lack of  provision of a location plan does not necessarily invalidate a notice where the recipient would have been fully aware of what land the notice related to.

Response

In my experience it is often possible to get a suitable A4 copy from a local library for a few pence.

The Planning Portal project now being developed by the Planning Inspectorate will include the enablement to make planning applications on-line. I understand that, as part of this service, free downloading of ordnance survey extracts will be possible.

I refer to the comment that Ordnance Survey based plans may be purchased "for a few pence" from local libraries. It may be true that libraries can provide copies but these cannot be used for planning or building applications unless they are purchased under the conditions imposed by the Ordnance Survey on the authority, in that they shall either be a Superplan agent or be registered under the Map Return Scheme. Authorities should be aware that the purchase of material under the Map Return Scheme allows only these copies to be returned as part of an application and no further reproduction is permitted. These copies should be suitably stamped to indicate the copyright restrictions.
The only copies provided by libraries are issued under the Copyright Act and are restricted to four in number and for research purposes only. If the authority is neither a Superplan Agent or registered under the Map Return Scheme they cannot sell or supply copies to any third party.

Also whilst Ordnance Survey material will be downloaded free as part of the Planning Portal Project, will these be restricted in use as copyright restrictions presently prevent this happening? Has Ordnance Survey agreed to this method of obtaining this material as they presently receive fees from local authorities for those purchased under the Map Return Scheme?

I recently had occasion to check a planning application granted by my council on land it owns for residential development which it intends to sell off with planning permission. I had always thought that Regulation 4 of the Town and Country Planning General Regulations 1992 applies, as stated in Circular 19/92. However, our solicitor is adamant that Regulation 3 applies as both criteria for Regulation 4 cannot be met. I suspect the use of the word "and" at the end of paragraph 4(1)(a) is a mistake if read to the letter of the law, as it seems to preclude district councils from dealing with applications for development they do not intend to carry out themselves even though it would normally be a district planning matter. Surely the Regulations must be worded incorrectly?

The wording used in the Regulations and the advice in the Circular on this subject is particularly  confusing. However, I cannot point to a case where its interpretation has been in dispute, and wonder whether anyone else has come across this apparent anomaly?

Response

This was indeed a drafting error and was later corrected by amendment order where the use of the word 'and' in Regulation 4 was deleted/substituted. Clearly Regulation 4 was specifically intended to prevent County Councils from determining their own applications for land disposals, such as playing fields, but the fact that District Councils also occasionally need to dispose of land was initially overlooked. JC

A planning authority has directed the submission of further details before it will acknowledge a planning application. However, the application contains the information specified on the forms, and was accompanied by the correct fee. What is the legality of this approach?

Powers contained in the Town and Country Planning (General Development Procedure) Order 1995 at Article 3(2) provide that where a planning authority is of the opinion that an outline application should not to be considered separately from all or any of the reserved matters, it may notify the applicant within one month of receipt that it is unable to determine the application unless further specified details are received. Accordingly, it is possible for a local authority to seek any details it likes. However, such a requirement would not seem to take away from the duty of a local planning authority to acknowledge an application provided the documents as set out at Article 5 of the Order have been submitted.

Some local authorities will provide householders with a letter stating whether a proposal is permitted development at no charge, even supplying a form for such an "application". Others require an application for a Lawful Development Certificate (LDC) and a 50 percent application fee. I had always understood that LDCs were only required in the event of a dispute over the need for a planning approval rather than in clear-cut cases where a letter might be needed for the purposes of a later sale. What is the legal position?

A local authority is not obliged to issue a letter of the kind you describe. But if it does, such a missive possesses no legal significance save that at a later date it could be held to estop an authority from taking enforcement action following a change of mind. An LDC on the other hand is a statutory document conclusively attesting to the lawfulness of an existing or proposed development, and therefore of far greater weight than any local authority letter. There is nothing at all to prevent application being made for an LDC where there is no initial contention, provided that the appropriate fee is paid, and the cautious may prefer play safe and go down that route in anticipation of particularly querulous purchasers in the future.

An applicant was requested to provide a design statement due to the planning authority's concern that a development was poorly designed in a prominent waterfront location. No more than a cursory annotated plan was provided, despite repeated requests and guidance on the extent of details required. Other than a refusal on the grounds of poor design, is the applicant's refusal to provide sufficient supporting information itself a ground for refusal?

Although PPG1 and PPG3 advise that statements should be submitted by applicants for planning permission where design issues are raised, this is not a mandatory requirement. However, the power to secure the provision of an adequate design statement lies in the fact that lack of one may be a ground for refusal, as demonstrated in a recent appeal decision from the New Forest area (DCS No. 50531779). Here an inspector considered that in connection with a housing development, a design statement submitted did not adequately demonstrate that the applicants had taken account of the need for good layout and design, and this formed part of the reasoning for dismissing the appeal. Another road a local authority may go down if an application is in outline is to invoke the General Development Procedure Order 1995. This, at Article 3(2), provides that local authorities may within one month of receipt, require that further details of the development itself be submitted. The Regulations do not require that any particular circumstances need apply in order for this power to be exercised. If the requested details are not received in accordance with a request under the Regulations it is a valid reason for refusal that inadequate plans were submitted to enable the impact of a development to be properly assessed.  Such a ground for refusal has been upheld at appeal, although in many cases an inspector will consider that if the development proposed is acceptable in principle, it is reasonable for details to be reserved by condition for later approval.

In both circumstances much depends on the nature of the case and I think that a local authority would be justified in digging its heels in where a proposed development is in a very sensitive location or on a tight site where it is by no means certain that a suitable design could be devised satisfying character or amenity constraints.

How many times can an applicant submit revisions to a planning application? Can I object if the planning officer and the developer are taking too long to submit the application to the planning committee?

There is nothing in planning law to prevent a developer from submitting any number of amendments to an original application before it is determined. The thrust of ministerial advice on the subject concedes that it may be sensible to allow applicants to amend details of applications, but cautions against protracted procedures. At the end of the day if the local authority and the applicant agree to a course of action which may involve several alterations to a scheme, there is not much that a third party can do unless any amendments substantially alter the nature of the original proposal. In this case there will have to be fresh consultation procedures possibly involving a new application altogether.

I am dealing with a case involving an application under section 73 of the Town and Country Planning Act 1990 to vary a standard condition related to time limits for the submission of reserved matters. In this case an outline permission was granted in 1991 for seven dwellings and reserved matters were approved and implemented in respect of two of the units. I wish to vary the condition in respect of two plots remaining in my client's ownership out of the balance of five. It is accepted by the LPA that the outline permission has remained extant, but it will not agree that the condition may be varied in such a way as to provide for the submission of reserved matters for the remaining units in two different stages. I would welcome your advice.

Section 92(5) of the 1990 Act provides that reserved matters conditions may apply separate time limitations to different parts of a development, and this is confirmed in conditions circular 11/95 paragraph 56. I appreciate that the situation in your case is slightly different in that variation of a condition already applied is sought, but it seems to me that the same principle should hold. Have readers any experience of this particular point?

Can a local planning authority determine a planning application after having received a letter from the applicant stating that he wishes to withdraw it?

The circumstances are that the withdrawal letter was only received two days prior to an application being determined at a committee meeting. Members were advised that the application had been withdrawn, but decided that the application should nevertheless be refused and that enforcement action be taken against an unauthorised structure that formed part of the proposal.

It is established that no planning decision has been legally made until a notice of that decision has been formally issued.  I am of the opinion that even if such a notice has now been issued by your authority there is no valid refusal of planning permission, for example that may be used as the basis of an appeal. However, I don’t have any authority for this view. Can any reader help?

Our client occupies a village workshop which was permitted subject to a condition that the premises shall be used for a joinery workshop and for no other purpose within Class B1, B2 or B8 of the Use Classes Order. My client now wishes to use the premises as a craft workshop with a small ancillary sales and display area, and has submitted an application. No fee was submitted, having regard to the Fees Regulations which state that one is not required where the requirements of a condition take away rights otherwise given by the Use Classes Order or the General Permitted Development Order. The local authority assert that the application is in reality a section 73 application to vary or remove a condition, and a fee is necessary. Who is correct?

It seems that what your client proposes would not require planning permission save for the condition, provided the proposed sales element remains ancillary. On the face of it this is just the type of situation intended by the Fees Regulations at (5) or (6) and as advised by Circular 31/92 at paragraph 8 of the Annex, and no fee is required.

My client built an extension assuming that it was permitted development. The LPA subsequently advised that, as it was over 50 cu.m., planning permission was required. A planning permission for its retention was refused. In fact the volume of the extension was less than 10% of the volume of the original house, and therefore is permitted development. Is a fee payable for a Lawful Development Certificate (LDC) to remedy the matter?

From what you say it seems that the LPA was at fault and unnecessarily caused your client to pay a fee for a planning application. However, the Fees Regulations do not embody a refund or disputes mechanism, and it would be a matter for the council’s judgement as to whether it is reasonable that the original fee should be returned in these special circumstances. If, alternatively, the local authority considered providing a "free go" for the LDC application necessary to regularise the matter, the eight week period does not legally begin to run without any fee being paid and consequently there cannot be an appeal against non-determination. Clearly it would be neater if this matter were resolved amicably by some form of compensation being paid in relation to the original application fee.

Response

I recall an application some years ago where an appeal was allowed to proceed on the basis of non-determination of a valid application.  The inspector showed some sympathy for my "10% either way" rule of thumb, but then accepted the appeal which related to an outline application with a reduction of dwelling units from 80 to 30.  Presumably "Residential development" was deemed to be the character and description of both schemes. DB.

I have submitted an application to create a bunded compound with a concrete base to allow imported green waste to be converted into compost for sale. I submitted the fee based on category nine, being the carrying out of an operation on land outside the other categories. The waste planning authority wish to base the fee on category 11, the use of land for the disposal of refuse or waste. Can you advise whether composting is to be treated as a manufacturing process to create a new product or can it be viewed on the same basis as landfill?

I would not have thought that that there is much doubt that composting is an industrial use given the definition of such a process in the Use Classes Order 1987, particularly if machinery is used to turn and water the material from time to time. Reference should be made to the appeal case reported in Planning 9 February 2001 p16 where the inspector was satisfied that the use fell within Use Class B2 (General Industrial) and issued a Certificate of Lawful Development in those terms. Waste on the other hand, although not defined in the Planning Acts, is normally regarded as material which the discarder no longer has any use for. This would hardly be the case with green "waste" which is specifically brought to a site with the express purpose of a process whereby it is turned into something else of utility.

Response

I am not sure that your answer is correct. However, it would be helpful if the definitions of wastes and waste processing could be clarified in planning law. I think that most local authorities regard green wastes as waste and composting as part of waste management. Composting is prominent in sustainability targets, PPG10 and Waste Strategy 2000. Has anyone addressed this point in more detail?

My council has received an application for the removal of an hours of operation condition which was imposed by an inspector in line with an adopted SPG. During the appeal process, issues relating to extended hours of opening were fully considered by the inspector who did not agree that they were appropriate.  Section 70A of the Planning Act allows an authority to refuse to determine an application after the dismissal of an appeal. Can my council refuse to determine in the circumstances of this case?

Section 70A allows a local planning authority to decline to determine an application for the development of land if within two years the Secretary of State has dismissed an appeal against the refusal of a similar application. In the case you cite there was no dismissal as such, only the rejection of a proposition that extended hours should be applied in the case of an allowed appeal. Therefore the law does not give your authority the power to refuse to entertain the application to extend the hours of this use. Of course, if your authority now refuses to extend the hours, and an appeal results, there is a good chance the appellant would have to face costs unless changed circumstances can be demonstrated.

I have made an application to insert a second floor door and balcony into a blank rear wall of a block of flats in London. I completed a Certificate A in accordance with Article 6 of the Town and Country Planning (General Development Procedure) Order 1995, as my client is the sole owner of "the land to which the application relates" (i.e. the rear wall of the flat). The proposed balcony cannot be seen from the street or any other flat and no one else in the block will be affected. Is the Authority correct to insist that all the other leaseholders are personally notified?

Section 65 of the 1990 Act states an application shall not be entertained until a notice prescribed by development order shall be given and certificated. Section 66 makes it clear that all "owners" of the land to which the application relates shall be served with such a notice, and defines "owner" as meaning any person who is the estate owner in fee simple, or is entitled to a tenancy granted or extended for a term of years certain of which not less than seven years remain un-expired. The General Development Procedure Order 1995 includes this latter definition within the draft "Forms of Notice" in Schedule 2.
From your outline I can only see one reason upon which to base a requirement to serve notice on all the other "owners" in the flat block. You refer to the provision of a balcony at second floor level, which, by reference to the provision of a door, indicates a projection from the face of the building. Section 55 of the Act tells us that development relates to building in, on, over, and under the land and suggests, in this case, a need to have regard to the title of the land over which the balcony projects. Unless your client owns the air space and land over which the balcony projects it would be my view that notice would need to be served on those parties who hold an interest therein. If the grounds are common to all the other "owners" then I would agree with the Council’s requirement to notify them and complete Certificate B.

Response

In the past, in similar circumstances, I have required notice to be served on other flat occupiers, after taking legal advice. Our solicitor pointed out that for the purpose of planning legislation "building" is included within the definition of "land". The balcony application relates to a "building"- the block of flats- and there are other owners of this building. Notice should therefore be served on these other owners of the ‘land to which the application relates’. I hope this interpretation is of interest?

Planning permission was granted more than 12 months ago for a number of flats in two separate blocks. Development has commenced but has not been completed. It is proposed to construct a link between the two blocks at first floor level to provide an extra bedroom for two of the flats. The LPA are unwilling to accept the variation as a minor amendment and a planning application for the link has been submitted. Is the LPA correct in requesting that the fee should relate to the whole development as the majority of the flats remain unchanged, rather than just the proposed new link?

Circular 13/92 states that to qualify for exemption a variation to a permission has to be for the same character or description of development. The courts have held that whether or not developments were of the same character is a question of fact for the local authority. This allows for a considerable amount of discretion to be exercised and it is difficult for me to come to any conclusion that the authority in this case was acting so unreasonably that its decision could be successfully challenged. A commonsense view might be that if no additional planning considerations are raised by amendments, such as amenity, design, density or parking/highways matters, then it is reasonable for a local authority to allow a free submission.

Response

As the initial permission was granted more than 12 months ago the applicant would not be able to claim an exemption.

The way to minimize the fee payable is for the enquirer to make sure the application forms and the red site boundary just relate to the new bridge flat between the blocks plus any others affected by the change of layout. All the other flats have a planning permission and he is not obliged to make another application for them. The fee would then be the total number of flats x £220. If the LPA disagree with this assessment his only way forward would be to lodge an appeal against non-determination but this will inevitably be a slow process.

I would argue that where development has begun pursuant to a permission it is clear that the applicant is not pursuing an alternative development but the one for which there is permission, which it is wished to amend.  The local authority have accepted a fee for that development and that is being built –in a sense a closed chapter. If the part of the development to which the amendment applies is largely completed there is little doubt that the authority in question would accept an application for the amendment only. What is the difference in relation to the basic status of the permission to be amended? It is being implemented. Surely it cannot matter what stage the implementation has reached?

I am a member of an advisory body for a conservation area in a London Borough. The council advertises applications in accordance with sec 73 of the Planning (Listed Buildings and Conservation Areas) Act 1990 in a weekly newspaper that is distributed free of charge. Unfortunately although it is claimed that the paper has a large circulation it is not distributed evenly and is rarely seen in the western part of the Borough where interest in conservation matters is at its highest.  The council has chosen this medium because it is the cheapest and it is satisfied that it is distributed throughout the Borough. It is my contention that this medium does not meet the requirements of the Act as there is no way that a copy of the paper can be obtained, such as through newsagents, unless it is actually delivered to a house.

On a further matter the section requires advertised applications to be available for inspection "within the locality". When one is fortunate enough to be become aware of an application it is only available at an office in the eastern part of the Borough some five miles from the western area and difficult of access by car and public transport. Is there any definition of what is meant by "in the locality"?

The requirement in sec 73(2) is that "the local planning authority shall publish in a local newspaper circulating in the locality in which the land is situated …a notice indicating the nature of the development in question and naming any place within the locality….where a copy of the application will be open for inspection…". No further elucidation of the terms which concern you is to be found in the Act itself. Similar terminology is used in relation to publicity for planning applications generally but neither the General Development Procedure Order 1995 or Circular 15/92 is of any further assistance. I am not aware of any cases to have tested whether advertising of applications in newspapers is being carried out in accord with the law and wonder if readers know of any precedents.

Can applications for barn conversions be submitted as outline applications? My view is that as a material change of use is involved an outline application cannot be made.

Circular 11/95 at para. 43 makes it clear that outline planning permission cannot be sought for a change of use alone. In any case, it is fundamental to the consideration of a barn conversion that the tests set out in PPG7 para 3.14 are applied, which would not be possible without the submission of details of exactly how a conversion would be achieved. As a result full details of barn conversions are normally required at the outset by local authorities using the powers given in the General Development Procedure Order.

Response

An outline application may be submitted for a barn conversion if the application is for the erection of a building, where "erection" may be defined as an alteration. This is on the basis that where planning permission is given for the erection of a building the rights to use the building as erected (or altered) come from the permission itself or the purpose for which the building was designed. Having established that an outline application can legally exist in these terms it is then up to the LPA to decide whether it can deal with it without one or more of the reserved matters. It must make that decision within one month. The reality is that the LPA would probably spend most of the month arguing whether there was a valid application. Having grudgingly accepted that this was the case it would then be too late to ask for the details!

In response to a planning application a council has refused to register it until a design statement is submitted. While we are prepared to submit such a statement we do not wish to delay registration and consultation processes. Article 3 of the Town and Country Planning (Applications) Regulations 1988 states that the application should be made on the form provided by the LPA and include the particulars specified in the form. The form itself does not specify a design statement although this is referred to in a freestanding note. It is our contention that this does not comprise part of the application form and we do not know of any authority which has such a specification in their form. Planning application forms tend to include standard questions and to go outside these seems to place an undue burden on applicants. Your advice is requested.

There is no statutory obligation requiring the submission of a design statement as part of a planning application although PPG1 supports their submission. However, Article 4 of the 1988 Regulations gives local planning authorities the power to require the supply of further information necessary to enable them to determine an application. To do so the authority has to apply for this information in writing and I doubt that a general note with an application form is legally adequate. However if this procedure were undertaken the application would not be valid until the additional information was received, as per sec.62 of the 1990 Act.

Response

At a recent planning workshop in York, reference was made to the use of Article 4, even in the advanced stages in the processing of a planning application.  If a consultation response indicated that further survey work was required prior to the determination of an application (for example relating to wildlife), and by the time the consultation response was received it was week 7 out of 8, it could be legitimately argued that the performance clock would not start until that information was received. If this is a legitimate course of action for local planning authorities to take, I have no doubt that most authorities would have to amend their standard letters relating to the start date of individual applications.

There are five reserved matters siting, design, external appearance, means of access and landscaping.  But what do design and external appearance actually mean? I have seen outline applications where one has been reserved but not the other. It seems to me that each should be capable of being shown on a drawing and enforcement action taken if there is a material departure from the submission.

The scope of reserved matters is set out in the terms you describe in the Town and Country (General Development Procedure) Order 1995. The same wording is to be found in conditions Circular 11/95 para. 43 and model condition 2.  The imposition of a condition on an outline permission in these precise terms is not mandatory, but clearly intended to be applied. Its scope would seem to have been designed to comprehensively cover those matters not normally included as part of an outline application and which, being development, need to be approved before any scheme may proceed. Given the general nature of the wording used to conditionally describe reserved matters the omission of one of them may not necessarily be critical to the maintenance of full control. The problem is rather a) ensuring that there is no doubt as to what development principles have been agreed at the outline stage; and b) securing that all the remaining details of the development based around and recognising those principles are later submitted for approval. In my opinion this requires a little more administrative sophistication than the imposition of a standard generalised condition. Reform would prevent the continuation of the disputes that dog this area of development control.

Over five hundred objections have been lodged against the renewal of a limited period permission for the running of autocross events at a farm. As a result of these objections the developer has amended the submission so that it is now to be treated as a new full application for a change of use. The local authority is suggesting that this amendment invalidates present objections. Can this be the case?

If a completely new application has been submitted this will need to be the subject of fresh advertising and consultation. In these circumstances it would be unreasonable behaviour for the local authority only to consider any new or resubmitted responses and to set aside those received originally, as the land use being considered is exactly the same. On the other hand if the local authority has accepted that a renewal application be amended to one for permanent use, it needs to consider whether this alteration is significant enough to cause injustice unless a fresh round of advertising or consultation is entered into. If no further consultation is undertaken then clearly the  original objections stand. 

This is clearly a situation of some delicacy, which could be the subject of challenge, and a prudent authority would be well advised to embark on a fresh consultation exercise in either case. Also when submitting the application to committee it should make sure that all the objections received in both rounds are fully reported.

My council is in the process of doing some research into whether or not we should be charging for pre-application advice. Do you know of any similar research that has been undertaken or of any authority that has implemented such a charging system.

The question of whether local planning authorities may make a charge for such consultations through use of sec.111 of the Local Government Act 1972 was resolved after a House of Lords judgment that no such power existed R v London Borough of Richmond-upon-Thames, ex parte McCarthy & Stone Ltd 14/11/91. PPG4 states at paragraph 13 that "pre-application discussions are beneficial to prospective applicants and local planning authorities alike, and that planning authorities should continue to provide advice where appropriate, notwithstanding their inability to charge for it."

Five years ago we approved a building conversion including a 2 storey side extension. A semi-mature sycamore was within 4 metres of the new development and the crown was shown as modest and not impacting on the new works. The council’s tree officer recommended at the time that thinning be carried out by a qualified tree surgeon.

Renewal of the permission has now been requested and on visiting the site it is clear that the tree is substantially larger than previously shown on plans. Now any new development would have a detrimental effect on the tree, which if removed would harm local amenity. Can the growth of a tree be considered a material circumstance in considering the application?

A material change in planning circumstances can be a reason for rejecting an application for a renewal of planning permission. I do not know of a decision where tree growth has been felt to be such an instance. In this case I think it likely that at appeal an inspector would reason that the growth potential of the tree was clearly envisaged at the time of the initial planning approval.  Therefore it would seem to be unreasonable now to say that the same development, as would be in place had it been implemented, cannot be given a further permission.  I wonder if there is a compromise position here whereby the power given by sec. 197 of the 1990 Act to safeguard trees by planning conditions could be used?

What is the accepted interpretation of the requirement in the Fees Regulations stating that in allowing a "free go" the LPA must be satisfied that the second application "relates to development of the same character or description as the development to which the earlier application related"? I am aware that different authorities apply this wording in various ways. My view is that the regulations were worded to allow minor modifications to submissions such as changes to fenestration, small extensions or house type changes, but not for example changes from bungalows to houses or an increase in the number of units overall.

This question has been before the courts in R. v South Holland DC ex parte Hey & Croft Ltd [1991]. This was a case where the mix of housing units was altered and the overall number slightly reduced to overcome a refusal on density grounds. A second fee had been paid under protest but it was claimed that none was due. The court ruled that the words "character" and "description" were ordinary English words devoid of mystique and technical meaning. It was for a local planning authority to exercise its judgment on that meaning.

Limited guidance to local authorities was given in Circular 5/89 which stated that "The regulations are drafted to allow a great deal of flexibility. A minor change, for example, in the number of houses on a site would be eligible, as would changes to the details of a building’s appearance." When Circular 5/89 was superseded by 13/92 the latter sentence was replaced with the less explicit "Minor changes which the local planning authority is satisfied maintain the character and description of the previous application will be exempt."

It would seem that both at judicial and ministerial level there is a reluctance to interfere with the discretion of local authorities in this matter, inevitably resulting in the inconsistencies which you mention.

I have taken over a commission where the former agent made an outline planning application for a bungalow tied to a plant and nursery operation. Things have moved on and an outline application would be pointless. Can I convert the outline application to a full application without incurring an additional £220 fee?

There is no specific mechanism in the Fees Regulations to cover this situation, although Circular 13/92 states that there is only exemption for revisions of outline applications of the same character and description where the fresh application is also in outline. The circular also advises that correct fees for valid applications cannot be refunded once these are accepted. It would seem that in this case the local authority is entitled to ask for a fresh fee, but has any reader experience of this situation?

I have recently submitted an application for a new holiday restricted dwelling. In the past, local authorities have always charged the application fee on the basis of £220 per dwelling. However, one authority is now insisting on calculating the fee as a business use at the rate of £220 per 75 sq m floor area. Do local planning authorities have any discretion on how they classify a holiday dwelling?

A single dwellinghouse occupied for holiday purposes falls within Class C3 of the 1987 Use Classes Order, as amended. The principal court cases supporting this view are R. v Tunbridge Wells B.C. ex parte Blue Boys Developments et al 20/7/89 and Moore v SoS & Another 12/2/98. The planning application fee should be calculated accordingly. I am afraid that there is no mechanism to resolve disputed fees other than through the High Court, which would not be appropriate in this case, or by appeal to the SOS on the grounds that the planning authority has failed to determine the application within the prescribed period. In deciding whether the appeal can be accepted, the Planning Inspectorate would need to consider whether the correct application fee was paid.

My council has recently received a glut of large-scale housing developments on windfall sites. Each probably conforms to relevant policy guidelines, but as they do not relate to any development plan allocation or development brief, there has been no plan-led assessment of the cumulative impact of traffic. The highways engineers advise that if a number of the developments proceed, the highway network will become overloaded. Should the applications be considered on a first-come, first-served basis, or in order of receipt of sufficient information to demonstrate their individual acceptability? Or should the Council approve those that achieve the greatest environmental or regeneration benefits?

While the planning system usually works on a first-come, first-served basis, it seems to me that there would be merit in prioritising these sites according to their size and impact on the highway network, but within the context of an assessment of their suitability and potential against the criteria set out at paragraph 31 of PPG3. Readers’ views and experiences are invited on this interesting dilemma.

We have received a planning application relating to a development on land which is mainly located in an adjoining district. I think there is some legislation stating that in a case like this the entire application can be dealt with by the adjoining district, who will then consult us. Please can you confirm whether this is the case as I have been unable to find the relevant legislation?

I too have had difficulty finding any guidance on this. As far as I have been able to establish, there is nothing in the 1990 Act or related legislation. The main provisions for dealing with planning applications are shared between the Applications Regulations, and the General Development Procedure Order 1995, but these are silent on this matter.

The only reference I have found to cross-boundary applications is in the Fees Regulations 1989, which says that where an application relates to land in the area of two or more planning authorities, the fee shall be paid only to the authority into which the largest part of the site falls. It might follow that the recipient of the fee would be the determining authority, having consulted the other authorities within whose area the application site also lies.

However in an appeal case (Sevenoaks DC 21/1/03) (Planning 7/2/03) concerning a development straddling a local authority boundary, an inspector took a different view. He concluded that as both authorities were district planning authorities and sec 5(1) (c) of the GDPO states that an application for planning permission shall be made to the district planning authority, a separate planning application must be made to each authority. He did not consider that the Fees Regulations implied that the so-called "lead" authority automatically assumes any jurisdiction over the neighbouring authority area. Unfortunately, he did not explain what consultation formalities ought to have been undertaken but clearly there is none to be derived from the Applications Regulations.

A council has resolved to grant permission for our joint application subject to a Section 278 Agreement and meeting its legal costs. We are the landowner. The other applicant, who has no legal interest in the site but has been managing the application, is unhappy with the Council’s requirements and has walked away. The planning authority is now seeking written confirmation from them that we can proceed alone, but it is unlikely to get this. Does a joint application require both applicants to sign up to everything?

Naturally, it would normally be expected that joint applicants are treated as one. However, my understanding of Sec 278 of the Highways Act, as substituted by the New Roads and Streets Act 1991, is that it enables a Highway Authority to enter into an agreement with any person for the execution of works within the highway and for the making of related financial contributions. While I am not certain, I cannot see why you should be prevented from entering into such an agreement, regardless of the wishes of the co-applicant who, being neither a co-signatory nor landowner, would not be potentially liable in the event of its enforcement.

However, the co-applicant would of course be denied the opportunity for an appeal against the council’s demands. An alternative way forward might therefore be for you to re-submit the application as a sole applicant. The requirement to meet the council’s legal costs in making the agreement is specifically authorised by Subs 2 (a). It would be interesting to hear the views of others on this awkward issue.

We recently submitted an outline planning application for residential development. The red line was drawn around the application site and a new vehicular access, and the appropriate Notices were served on the landowners. However the planning authority has said that proposed junction improvements to the existing highway must also be included within the site. I have always understood that these works could be dealt with by a Section 278 Agreement under the Highways Act 1980. What are your views?

Although I have come across this before, I am not entirely clear why a planning authority should insist on such a requirement particularly since, as you say, Sec 278 of the Highways Act enables an agreement to be made for the carrying out of works within the public highway. I assume that the authority considers that by doing this it would retain greater control over the development, including enabling certain conditions precedent to be imposed on the permission, although the effect of these can normally be achieved through a Grampian style condition. Perhaps a reader will clarify the possible reasons for the planning authority’s stance.

Response

With regard to the query concerning a local authority that has insisted on highway improvement works being included within the application site this is probably because some of the land required to improve the junction lies outside the public highway and the application site. As such, it would require specific planning permission. Also, its inclusion would enable the imposition of a condition requiring the implementation of the junction improvement works prior to the occupation of the dwellings.

My authority granted planning permission for a block of five flats. Construction work started but stopped before the walls were finished. A new application for a "sixth flat in a redesigned roof of approved development" has been received with a fee of £220. Should we accept this as an amendment to an uncompleted scheme or require a fresh application for the erection of a block of six flats? If the former, would it be acceptable to have two different planning permissions authorising the completed building?

Superficially, it would seem harsh to insist on a revised planning application for the whole development if the change is confined to the roof of the building, and I can therefore understand the view that an additional fee should only be payable in respect of the new unit. However, in the case of a flatted development, there is an unusually close physical and functional relationship between units, in the way of shared services and areas, which may preclude a proper planning assessment of a further unit as if it were a divisible add-on. In particular, I would have thought that the implications for the provision of off-street parking or communal amenity space were sufficient to justify a fresh application covering the entire building and its site. As you imply, that would also avoid the potential difficulties that could arise from the granting of a permission that relates only to part of the building.

Agents for proposed purchasers often seek a planning authority’s written confirmation that a new property has been built in accordance with the relevant planning permission. Normally, however, an authority will not have the resources to deal with these requests and may be worried that it could be estopped if it misses a problem. A solution might be to require the submission of an application for a Lawful Development Certificate affirming that the development is lawful because it accords with the relevant permission. What do you think?

This has been common problem for the reasons you say, although the judgment in R (on the application of East Sussex County Council) v Reprotech (Pebsham) Ltd 2002 made clear that estoppel no longer applies in planning law. This has now been replaced by the more difficult-to-establish principle of legitimate expectation, based on a representation allegedly made on behalf of a public body. However, your suggested solution is the most obvious response to the problem and has been the practice of one of the authorities for which I worked previously, for many years now.

My authority has granted planning permission for a domestic extension but the site edged red on the approved plan covers a larger area than the curtilage shown in previous planning history.  No specific reference was made in the application to a change of use of the land.  Does this mean that the authority has authorised the enlargement of the residential curtilage by default?

The general principle is that the effect of granting a planning permission may be construed from the decision notice itself, without reference to the application. However, the courts have held that that are three exceptions. These are where: the application has been specifically incorporated by reference; the wording of a permission is ambiguous; or in certain circumstances where the validity of the permission is challenged.
In your case, some comfort might be had from Staffordshire Moorlands D.C. v Cartwright & another 1991 to support the view that the extension of the residential curtilage did not form part of the application’s ‘evidential matrix’. Thus, if this matter was not referred to in either the description of the proposed development in the decision notice or in the application itself, I think you could argue that it falls outside the scope of the permission.

Response

There is a further factor that the planning authority could use to show that an extension of the residential curtilage had not been approved. The application fee for this would have been £220, but presumably only the £110 fee for the domestic extension was paid.

As a councillor, I cannot understand why my authority approves outline applications for ‘residential development’ or ‘affordable housing’ solely on the basis of a site plan edged red. The GDPO makes clear that sufficient information should be required to make a proper judgement on the proposed development and that matters such as density cannot be a reserved matter. Surely neighbours have a right to know exactly what is being proposed?

The submission of outline applications to establish the principle of a development is common practice and stems from powers contained in Article 3 of The Town and Country Planning (General Development Procedure) Order 1995, pursuant to sec.92 of the 1990 Act. Article 3 states that where an outline application is submitted, an authority may grant planning permission subject to a condition specifying reserved matters for the authority's subsequent approval. Paragraph 43 of Circular 11/95 explains that these are the siting of the building, its design, its external appearance, the means of access, and the landscaping of the site.

Where an authority considers that the outline application ought not to be considered separately from any or all of the reserved matters, under Article 3(2) it may require the submission of further details. Typically, this will happen where a proposed development is in a visually sensitive area or there is doubt over whether a site could accommodate a development in a satisfactory manner. In many cases, the submission of an illustrative layout will be sufficient to demonstrate how a site could be developed.

I cannot trace your specific comments to the GDPO. However, Circular 11/95 suggests that acceptable conditions may include those to restrict the density, form or height of a proposed development or to retain important landscape features. The details of the development permitted will be considered at the reserved matters stage, following consultation with neighbours.

What is the legal basis for entering land to undertake an inspection with regard to a planning application? There are stated powers where enforcement, trees or listed building matters are concerned but these seem unclear where a planning officer is simply undertaking a normal site visit and the land (not the building) is either occupied but no-one is at home, or the land is unoccupied.  In any event, what is meant by unoccupied?  Would it include a paddock or curtilage of a garden for instance?

Section 324 (1) of the 1990 Act confers rights on any person duly authorised in writing by the Secretary of State or by a local planning authority to enter, at any reasonable time, any land for the purposes of carrying out certain functions, including surveying land in connection with a planning application. Except where exercised in connection with the removal or obliteration of placards and posters, the rights of entry under this section are not restricted to unoccupied land, and this term is not defined.

In the case of occupied land, supplementary provisions set out under Sec 325 require that evidence of a person’s authority to enter any land and the purpose of such entry should be produced, where requested. In addition, 24 hours’ notice should be given of intended entry and compensation may be recovered by any person suffering damage to land or chattels as a consequence of such entry.

My client is erecting a building in accordance with a planning permission but has now submitted an application for an alternative use with a fee of £220.  However, the planning authority has refused to register this, saying that a change of use application cannot be made before the first use has commenced. It therefore requires an application for the whole development and a fee in excess of £4000. Neither the authority nor I can find any relevant regulation, case law or guidance. What are your views?

While this does appear to be somewhat unreasonable, as the only issue to be reconsidered is the use of the building and not the building itself, I agree with the planning authority’s stance. It seems logical to me that a use cannot be changed until such time as the new use is instituted, otherwise what is being suggested is in effect a revised proposal. As such it will incur a new fee, although I have been unable to find any basis in planning law or practice that specifically supports this view.

However, Circular 13/87, which accompanied the Town and Country Planning (Use Classes) Order 1987, deals with an arguably analogous situation and makes clear that a use has to be implemented before the Order can take effect, and for any change from one use to another within the same class not to be regarded as development.

Response

In reply to the query on whether a change of use application relating to a partly constructed building can be submitted before an initial use has commenced, my authority recently refused to register a similar application for the same reason.  However, the applicant subsequently appealed against its non-acceptance or determination, and requested a public inquiry on the grounds that this involved the correct interpretation of a matter of law. The Inspectorate decided that the application should have been accepted, that it is possible to apply for a change of use to a building which is in the early stages of construction or complete, and that it should only attract a change of use fee. Although my authority did not agree with this, to save officer time and avoid a public inquiry, an identical application was subsequently accepted. Given your views, maybe my authority should have stuck to its guns and gone through to inquiry.

It would be interesting to know on what basis the Inspectorate came to its decision. It is tempting to think that this might have had as much to do with expedience and pragmatism, as any reliance on a definitive interpretation of planning law and procedure.

The deputy prime minister has just announced that all planning authorities must provide a full e-planning service within two years.  This will require all planning applications and development plan submissions to be made on-line.  Although signatures can be scanned in, these submissions would not include an original handwritten signature and many authorities presently require this. Does this stem from the current planning regulations?

The Government is committed to the electronic delivery of council services by 2005. The Planning Portal indicates that so far only a dozen or so planning authorities allow the full submission of applications electronically, although many more have published their development plans online.

In England, the legal impediments to providing e-planning services were removed by the Town and Country Planning (Electronic Communications) (England) Order 2003, made under Section 8 of the Electronic Communications Act 2000. The Order came into force on 31 March last year and amends relevant planning legislation to enable the term "writing" and other equivalent expressions to include electronic communications, subject to certain exemptions such as those relating to enforcement matters. It contains no requirement for applications or other documents submitted on-line to be signed, electronically or otherwise.

The deputy prime minister has just announced that all planning authorities must provide a full e-planning service within two years.  This will require all planning applications and development plan submissions to be made on-line.  Although signatures can be scanned in, these submissions would not include an original handwritten signature and many authorities presently require this. Does this stem from the current planning regulations?

The Government is committed to the electronic delivery of council services by 2005. Currently, only about 3% of English and Welsh planning authorities allow the full submission of applications electronically, although a much higher proportion offer other interactive services online, including the making of representations on emerging development plans.

In England, the legal impediments to providing e-planning services were removed by the Town and Country Planning (Electronic Communications) (England) Order 2003, made under Section 8 of the Electronic Communications Act 2000. The Order came into force on 31 March last year and amends relevant planning legislation to enable the term "writing" and other equivalent expressions to include electronic communications, subject to certain exemptions such as those relating to enforcement matters. It contains no requirement for applications or other documents submitted on-line to be signed, electronically or otherwise.

I am told that planning conditions which require the submission of further details cannot be attached to a planning permission for an application for which an Environmental Impact Assessment (EIA) has been undertaken, as all matters should be adequately dealt with in the Environmental Statement. Is this correct?

There is no specific reference to this in Circular 11/95, which deals generally with the use of conditions, the Town and Country Planning (EIA) (England and Wales) Regulations 1999, or the accompanying Circular 02/99. However, the latter advises that when an outline application is made, the planning authority will need to satisfy itself that there is sufficient information on the environmental effects of the proposal to enable a decision to be made on whether permission should be granted in principle. Where the Regulations require more information on the environmental effects for the Environmental Statement than has been provided in an outline application, planning authorities should request further information under regulation 19.

As with any other planning application, the planning authority may refuse permission for an application accompanied by an EIA, or grant it with or without conditions. Circular 11/95 advises that it may be appropriate, within the powers to impose conditions and in the light of the environmental assessment, to require a scheme of mitigation covering matters of planning concern to be submitted to and approved in writing by the planning authority before any development is undertaken.

When land is included in an outline planning application but subsequently excluded from a full application which is yet to be determined, does the outline permission takes precedence over a local plan allocation when it involves change of use? Does the land require a change of use permission when being developed in accordance with a local plan allocated use?

As I do not know the background to your query, the circumstances here are somewhat obscure. However, a local plan allocation cannot revoke an extant planning permission. Provided any conditions have been complied with, this will remain capable of implementation even where it would conflict with the development plan. It will also be a material consideration when the merits of subsequent applications are assessed, although in the case of an application for the approval of reserved matters following an outline permission, the principle of the development cannot be revisited.

A local plan allocation does not grant permission for any change of use of the affected land, or confer any rights to such a permission; it is therefore still necessary to apply for this. In essence, Sec 54A of the 1990 Act requires decisions on applications to be made in accordance with the development plan unless material considerations indicate otherwise. Such considerations would include the age and relevance of the plan, especially in relation to any fundamental changes in Government policy.

I have heard that the lawful development certificate (LDC) system may be amended or scrapped under the emerging planning act. Please could you confirm the position and in particular whether the new rules will adversely affect cases where the 4 or 10 years have already accrued, but no LDC application has yet been made.

The Planning and Compulsory Purchase Bill, which was introduced to parliament in December 2002 and is now progressing through the House of Lords, contains no clauses to replace or amend the existing provisions relating to the lawful development certificate regime or to time limits for taking enforcement action, as set out at sec 171B of the 1990 Act. However, in its consultation paper: Review of the planning enforcement system in England, issued in September 2002, the ODPM highlighted the problems with such time limits. It therefore invited views on the abolition of the 10 year rule and on whether there should be a transitional period, of say 3 years, before this is abolished to give time for obtaining lawful development certificates for all existing development which did not have planning permission. But although there is strong support from many within the profession for scrapping these limits, as far as I am aware, nothing further has emerged from ODPM and there are thus no current plans for this.

My authority has received an application for extensions and alterations to a replacement dwelling where all that currently exists are the foundations and floors, but no walls. This follows four proposals for considerably larger replacement dwellings, all refused as being contrary to policy. The fee paid is for an extension only and the applicant wishes the application to be considered under the authority’s house extensions policy, presumably hoping for a more favourable result. In the authority’s view, an application to extend a dwelling that has not been substantially completed cannot be accepted but should be treated as a revised proposal for a new dwelling, with the appropriate fee. Is this correct?

I cannot identify a definitive ruling on this. However, Category 6, Part II Schedule 1 of the Applications Fees Regulations 1989 refers only to the "enlargement, improvement or other alteration of existing dwellinghouses". Given that the development on site has not yet reached the stage where it could be said to be a building for dwelling in, in my view any application for its enlargement must be considered as a revised proposal and not as an extension. As to when the development would become an existing dwellinghouse for purposes of Category 6, there are a number of possibilities. These include when it is substantially complete - in accordance with the advice of circular 10/97, when the dwelling is completed in terms of compliance with approved plans, when it is ready for occupation or when it is occupied.

Case law on ruined buildings and permitted development rights provides a useful analogy. In Trustees of the Earl of Lichfield's Estate v Secretary of State for the Environment 1985, the court ruled that to benefit from GPDO rights, there must be a dwellinghouse in existence when the operations are being carried out. Although the building need not be an occupied dwelling, there should at all times be a structure sufficiently intact as to reasonably support the description of a dwellinghouse.

My authority is currently dealing with an application for a hostel. There is no information on who the occupiers might be and concerns have been expressed that these could include young offenders or homeless persons, including asylum seekers. Is it right to require clarification of this and take it into account when deciding whether to grant planning permission?

With some notable exceptions, the general approach to planning is that it is concerned with land and buildings, and not the identity of their occupiers. This is made clear in PPG1, and circulars 13/87 on changes of use and 11/95 on the use of planning conditions. However, in the case of a hostel, which was removed from Class C1 of the 1987 Use Classes Order in 1994, this term can include both long-term and transient accommodation and different types of hostel can have very different effects in planning terms. I therefore think it quite legitimate to require further information on the nature of the proposed occupiers and have regard to this, in so far as it influences the character of the use of the land under consideration and how that would impact on neighbouring land. Case law, especially West Midlands Probation Committee v SoSE and Walsall Metropolitan Borough Council, and recent appeal decisions support this view.

If an application is registered by a planning authority but later withdrawn by the applicant, are they entitled to have their fee returned? In addition, has the planning authority discretion to decide whether or not to accede to a request to withdraw an application?

The Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 do not provide any facility to refund a fee once an application has been registered. Provision for refunds is made only where an application is rejected as invalid or if sums paid are not actually required by the regulations. I have never encountered a situation where an authority has been prepared to refund a fee following the withdrawal of an application, and it is normal for this to be made clear in accompanying guidance notes and fees forms.

Although common practice and referred to generally in subordinate planning legislation and guidance, I can find no specific reference to an applicant’s right to withdraw an application following its submission. However, I can think of no circumstances before the decision is made where it would be reasonable to deny this, although it is perhaps arguable whether an applicant should be entitled to withdraw an application after a decision has been made but before the notice is issued.

Response

With regard to the query concerning the return of application fees my authority does not appear to have a consistent approach to this matter. In particular, if a valid application is altered in response to a breach in policy and the revised proposal then constitutes permitted development, should the original fee be returned, even though extensive work has already been undertaken by the planning authority? Do the fees regulations set out the approach we should take?

Para 26 of Circular 31/92: Fees payable for planning applications explains that the regulations do not provide for the refund of correct fees paid for valid applications once these are accepted, but refunds may be made at any stage of fees paid for applications rejected as invalid and of any sums not required by the regulations.

The proposition you describe is unusual in that there is clearly no point in amending an application to reflect what might be built as permitted development. In such circumstances, I would expect the application to be withdrawn. If the applicant is willing to do this I see no reason why the planning authority should refund the application fee.

In granting reserved matters approval for my client’s leisure development, a local authority has imposed a condition seeking to drastically limit the number of parking spaces to be provided. No such restriction was required at the outline permission stage or even mentioned during negotiations with planning officers. I am now seeking to argue that the parking condition is unlawful as it is not covered by the standard reserved matters condition relating to the submission of details of the buildings and landscaping. What is your view?

This question was considered in a 1999 appeal case concerning an office development in Cheshire (DCS No. 32532006). Here the inspector reasoned that the term "buildings" covered car parks and therefore the condition was within the power given by the outline permission.  Whatever one’s view of this interpretation, its seems only prudent for planning authorities to ensure that such a sensitive matter as restrictive car parking requirements is dealt with by a condition imposed on the original outline permission, and is not left to be dealt with by a condition of a reserved matters approval.

My local authority advises me that since it has not received the further information it requested some time ago in connection with my client’s application and that the proposal has not been withdrawn, it has treated the application as having been "finally disposed of" and proposes to take no further action on the matter. I have never come across this expression before within the context of a planning application and would be grateful for your explanation.

The phrase is used in Sec 69 of the 1990 Act which requires planning authorities to keep a public register of applications and decisions, as supplemented by the provisions of Article 25 of the Town and Country Planning (General Development Procedure) Order 1995. Rather than keep a file open for an indefinite period with an application undecided, some planning authorities may record that the application has been finally disposed where an applicant has failed to submit further information in response to repeated requests, to appeal against the non-determination of the application within the relevant time limits or to withdraw the application. Such action will normally only follow protracted delays and might perhaps be seen as a function of administrative expedience. It is of course always prudent to monitor closely the progress of any application, bearing in mind the planning authority’s stance and the time limits for lodging an appeal.

Can an application for outline permission propose both an extension to and a change of use of an existing building?

Although I can find no clear legal basis for this an article from the Journal of Planning and Environmental Law would seem to suggest that it cannot be done. However, paragraph 43 of Circular 11/95 advises that outline planning permission cannot be sought for a change of use alone. That implies that when combined with proposed building operations, such an application might be acceptable. But the circular offers guidance only and has no statutory force.
Sec 92 of the 1990 Act defines "outline planning permission" by reference to the provisions of a development order. Article 1 of the Town and Country Planning (General Development Procedure) Order 1995 makes clear that the expression means planning permission for "the erection of a building", subject to a condition requiring the subsequent approval of the local authority with respect to one or more reserved matters. This is repeated in Regulation 2 of the Town and Country Planning (Applications) Regulations 1988. Sec 92 also refers to outline planning permission for development "consisting in or including the carrying out of building or other operations". In my view, having regard to the meaning of development at Sec 55 of the Act, "other operations" would include engineering and mining operations but not a material change of use.
Common sense suggests that in this case the two types of development could be considered together but that an application for full permission would be appropriate. However, even if it is held that an outline application can include a change of use, it would be open to the planning authority to seek further details of the proposed development under Article 3 of the GDPO.

SODD Circular 4/1997 Notification of Planning Applications (Scotland), says that the Scottish Executive should be notified where an authority has a financial interest in a site and the application conflicts with the adopted or approved local plan or has been the subject of a "substantial body of objections". In accordance with this advice, my authority has notified the Executive that it is minded to approve an application for flats on council-owned land which complies with the development plan but has attracted 9 letters of objection, which mostly raise material considerations. Are you aware of any definition of "substantial body of objection"?

I have been unable to find any definition of this phrase in planning law or practice that applies in either Scotland or other jurisdictions. However, I think it unlikely that just 9 objections would be held to be sufficient to trigger this notification requirement. Can any reader help?

My authority is currently considering an application under sec 42 of the Town and Country Planning (Scotland) Act 1997 (which is equivalent to sec 73 of the 1990 Town and Country Planning Act) for the variation of conditions attached to a permission granted in 2001. The permission contains various conditions that may now be obsolete for several reasons, including recent changes to the development plan. Is the authority limited to considering only those conditions for which variation is sought or is it able to look again at all the conditions of the permission?

This provision enables an application to be made for a new permission, removing or varying conditions attached to an existing permission. Regardless of its outcome, the original permission and its conditions will remain intact. When determining such applications, authorities are required to consider only the conditions subject to which planning permission should be granted and they cannot revisit the principle of the development. But they are not prevented from looking again at the wider considerations affecting the original permission and taking a different approach to addressing issues of concern. Thus they may grant permission subject to fresh conditions and in R. v Leicester City Council Ex parte Powergen UK plc [2000] the courts held that these are not restricted to those the subject of the application.

On appeal, however, there is a significant difference. Inspectors are able to strike out the whole permission if suitable new vires conditions which would make the development acceptable cannot be found, but this possibility is not often appreciated.

As an agent, I sometimes have difficulties gaining access to information on planning application files and in particular obtaining copies of all the relevant background papers. Often an authority will deny access to certain correspondence and memoranda, saying that these are "internal documents" only. Can you please explain the legal position?

The Local Government (Access to Information) Act 1985 conferred certain rights of access to documents which are considered at council meetings, including agendas, reports and background papers.  These must be available for public inspection for three clear days prior to the meeting, excluding the date of publication and Saturdays and Sundays, but this rule does not apply to any supplementary report on an item already on a published agenda. The public are entitled to copy documents, or to require copies to be made for them, at a reasonable fee and it is an offence intentionally to obstruct the exercise of these rights.

Copies of the agenda, reports and minutes must be kept open for public inspection for six years after the meeting but this is reduced to four years for background papers. These are defined in the Act as "those documents relating to the subject matter of the report which (a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and (b) have, in his opinion, been relied on to a material extent in preparing the report, but do not include any published works". Therefore they would include internal memoranda outlining a department’s views on the proposed development.

The Government is committed to promoting a culture of openness throughout councils and greater transparency in decision-making. With some exceptions, the Freedom of Information Act 2000, which comes into force next January, will give a statutory right of access to all information held by a local authority. This is explained in the ODPM’s consultation paper Access to Information in Local Government issued in September 2002.

In reply to a query concerning access to planning information, following the Local Authorities (Access to Meetings and Documents) (Period of Notice) (England) Order 2002, agendas and related documents must now be made available for public inspection for five clear days prior to the meeting, and not three as originally required by the Local Government Act 1972.

In response to an enquiry about the phrase "substantial body of objections" as stated in the Direction attached to Scottish Office Development Department Circular 4/1997 (Planning 23 April, p21).

•    The Chambers dictionary defines ‘substantial’ as "of a considerable size or value" and "worthwhile, important, telling". As it has both a quantitative and qualitative meaning, elements other than mere volume should be considered by authorities when deciding whether to refer applications in which they have an interest to the Scottish Executive. A 'substantial body of objection' could be contained within a small number of objections or even in a single letter, such as from a community council representing a large number of people. The key test is that planning procedures should be seen to operate openly and fairly, as stated in Circular 4/1997. The present guidance is ambiguous and greater clarity is therefore needed from the Scottish Executive. It would be more transparent if authorities were required to refer all applications in which they have an interest, and are minded to grant, to the Scottish Executive.

•    When drafting the Direction, a decision was taken by the Scottish Executive’s Planning Division not to provide a specific definition for this phrase. This is because it was felt that the term could legitimately be interpreted differently depending on the circumstances of the case.  For example, 20 objections might be considered "substantial" where they relate to a development proposal in, say, a small village, whereas this might not be the case in respect of a similar proposal in a large town or city. The view was taken, therefore, that it should be for each individual planning authority in Scotland to decide whether a body of objection was "substantial" having regard to the particular circumstances of a case.

Regarding Scottish Office Development Department circular 4/1997, there was a case where on judicial review it was held that a council was not competent to grant permission for a proposal by a private company on land which the council had agreed to purchase, subject to the company's proposal receiving permission, and which was contrary to the development plan and had been the subject of 3 objections. Therefore the number of objections should normally be only secondary to a consideration of whether the actual objections themselves could form a 'substantial body' in the determination of the case. From the authority's point of view, it would thus be prudent and appropriate to err on the side of caution in its decision on whether to notify.

SODD Circular 4/1997 Notification of Planning Applications (Scotland), says that the Scottish Executive should be notified where an authority has a financial interest in a site and the application conflicts with the adopted or approved local plan or has been the subject of a "substantial body of objections". In accordance with this advice, my authority has notified the Executive that it is minded to approve an application for flats on council-owned land which complies with the development plan but has attracted 9 letters of objection, which mostly raise material considerations. Are you aware of any definition of "substantial body of objection"?

I have been unable to find any definition of this phrase in planning law or practice that applies in either Scotland or other jurisdictions. However, I think it unlikely that just 9 objections would be held to be sufficient to trigger this notification requirement. Can any reader help?

My authority is currently considering an application under sec 42 of the Town and Country Planning (Scotland) Act 1997 (which is equivalent to sec 73 of the 1990 Town and Country Planning Act) for the variation of conditions attached to a permission granted in 2001. The permission contains various conditions that may now be obsolete for several reasons, including recent changes to the development plan. Is the authority limited to considering only those conditions for which variation is sought or is it able to look again at all the conditions of the permission?

This provision enables an application to be made for a new permission, removing or varying conditions attached to an existing permission. Regardless of its outcome, the original permission and its conditions will remain intact. When determining such applications, authorities are required to consider only the conditions subject to which planning permission should be granted and they cannot revisit the principle of the development. But they are not prevented from looking again at the wider considerations affecting the original permission and taking a different approach to addressing issues of concern. Thus they may grant permission subject to fresh conditions and in R. v Leicester City Council Ex parte Powergen UK plc [2000] the courts held that these are not restricted to those the subject of the application.

On appeal, however, there is a significant difference. Inspectors are able to strike out the whole permission if suitable new vires conditions which would make the development acceptable cannot be found, but this possibility is not often appreciated.

As an agent, I sometimes have difficulties gaining access to information on planning application files and in particular obtaining copies of all the relevant background papers. Often an authority will deny access to certain correspondence and memoranda, saying that these are "internal documents" only. Can you please explain the legal position?

The Local Government (Access to Information) Act 1985 conferred certain rights of access to documents which are considered at council meetings, including agendas, reports and background papers.  These must be available for public inspection for three clear days prior to the meeting, excluding the date of publication and Saturdays and Sundays, but this rule does not apply to any supplementary report on an item already on a published agenda. The public are entitled to copy documents, or to require copies to be made for them, at a reasonable fee and it is an offence intentionally to obstruct the exercise of these rights.

Copies of the agenda, reports and minutes must be kept open for public inspection for six years after the meeting but this is reduced to four years for background papers. These are defined in the Act as "those documents relating to the subject matter of the report which (a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and (b) have, in his opinion, been relied on to a material extent in preparing the report, but do not include any published works". Therefore they would include internal memoranda outlining a department’s views on the proposed development.

The Government is committed to promoting a culture of openness throughout councils and greater transparency in decision-making. With some exceptions, the Freedom of Information Act 2000, which comes into force next January, will give a statutory right of access to all information held by a local authority. This is explained in the ODPM’s consultation paper Access to Information in Local Government issued in September 2002.

In reply to a query concerning access to planning information, following the Local Authorities (Access to Meetings and Documents) (Period of Notice) (England) Order 2002, agendas and related documents must now be made available for public inspection for five clear days prior to the meeting, and not three as originally required by the Local Government Act 1972.

In response to an enquiry about the phrase "substantial body of objections" as stated in the Direction attached to Scottish Office Development Department Circular 4/1997 (Planning 23 April, p21).

The Chambers dictionary defines ‘substantial’ as "of a considerable size or value" and "worthwhile, important, telling". As it has both a quantitative and qualitative meaning, elements other than mere volume should be considered by authorities when deciding whether to refer applications in which they have an interest to the Scottish Executive. A 'substantial body of objection' could be contained within a small number of objections or even in a single letter, such as from a community council representing a large number of people. The key test is that planning procedures should be seen to operate openly and fairly, as stated in Circular 4/1997. The present guidance is ambiguous and greater clarity is therefore needed from the Scottish Executive. It would be more transparent if authorities were required to refer all applications in which they have an interest, and are minded to grant, to the Scottish Executive.

When drafting the Direction, a decision was taken by the Scottish Executive’s Planning Division not to provide a specific definition for this phrase. This is because it was felt that the term could legitimately be interpreted differently depending on the circumstances of the case.  For example, 20 objections might be considered "substantial" where they relate to a development proposal in, say, a small village, whereas this might not be the case in respect of a similar proposal in a large town or city. The view was taken, therefore, that it should be for each individual planning authority in Scotland to decide whether a body of objection was "substantial" having regard to the particular circumstances of a case.

Regarding Scottish Office Development Department circular 4/1997, there was a case where on judicial review it was held that a council was not competent to grant permission for a proposal by a private company on land which the council had agreed to purchase, subject to the company's proposal receiving permission, and which was contrary to the development plan and had been the subject of 3 objections. Therefore the number of objections should normally be only secondary to a consideration of whether the actual objections themselves could form a 'substantial body' in the determination of the case. From the authority's point of view, it would thus be prudent and appropriate to err on the side of caution in its decision on whether to notify. Can my authority refuse to determine an application for a certificate of lawfulness for an existing use if an enforcement notice or breach of condition notice relating to the same development has already taken effect? Otherwise, what is to stop an applicant applying for such a certificate in an attempt to overturn enforcement action or delay prosecution proceedings?

This is not covered in the advice on certificates of lawfulness set out at Annex 8 of circular 10/97. Under subsections 191 (2) and (3) of the 1990 Act, a certificate cannot be granted where a use contravenes any enforcement notice or breach of condition notice in force at the time. As the effect of enforcement action here will be to defeat the application, other than as a possible stalling tactic its purpose is pointless and apparently vexatious. But whether the authority would be justified in refusing to determine the application is arguable, as there is no specific power for this under sec 70A of the Act.

The proper course for the applicant would have been to have challenged an enforcement notice by an appeal under ground (d) of the statutory grounds of appeal or, in the case of a breach of condition notice against which there is no right of appeal, perhaps to have applied under sec 73A to retain the development as carried out.

In any event, I see no reason in law why a belated application for such a certificate need delay further proceedings to ensure compliance with the requirements of an existing notice.

An application has been submitted to my authority without a fee, as the applicant's agent argues that it should be treated as a free resubmission within the 12-month period. However, the application differs from the original in that the number of apartments has been increased by 5 to 50, and 9 houses are now excluded from the red-edged application site but shown within an area edged blue. Can these changes be treated as a minor amendment for the purposes of the Fees Regulations? If not, how should the application be dealt with and the fee calculated?

The Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 provide that a free resubmission may be made within 12 months providing a number of conditions are met. These include that the planning authority is satisfied that the proposed development is "of the same character or description" and relates to the same site or to part of that site as that previously considered. Guidance on the regulations is given in Circular 31/92. The exclusion of the 9 houses from the site edged-red does not prevent the new application from being exempt from the need for a further fee. Previous advice in Circular 5/89, which indicated that changes to numbers of dwellings could qualify for a free submission, was not carried forward into the current circular. Instead, authorities should exercise their discretion in such matters. Thus if the authority is satisfied that the additional apartments would not represent a minor change but would materially affect the development as a whole, a new fee will be required. But whether this should be calculated on the basis of just the five new units or the complete development depends on how the additional dwellings are to be achieved.

A local authority has recently published a practice note on access to planning files. This says that internal consultee responses, local residents’ letters, emails, evidence supporting an application for a certificate of lawfulness and appeal questionnaire forms do not form part of the public register, are therefore confidential and will not be made available for general inspection. I have always understood that as these documents are background papers to an application or appeal, under the Access to Information Act the public not only has a right to see them but also is entitled to copies. Does the authority have the right to withhold this information?

The Local Government Act 1972, as amended in part by the Local Government (Access to Information) Act 1985, gives the public the right to inspect and copy any background papers used in preparing reports for any decision-making meeting of the council, such as those considering planning applications. It is an offence to intentionally obstruct the exercise of these rights. Background papers are defined in the Act as "those documents relating to the subject matter of the report which (a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and (b) have, in his opinion, been relied on to a material extent in preparing the report, but do not include any published works". Therefore they include all those items to which you refer, with the possible exception of the appeal questionnaire.

As these items appear to neither contain confidential information within the meaning of sec. 100A (3) of the Act, which deals with restricted information furnished by a government department or subject to a court order, nor are they exempt by virtue of sec.100I, which seeks to protect the identity of informants in cases of the breach of planning control, I think the practice note infringes the statute. With certain exceptions, the Freedom of Information Act 2000, gives a statutory right of access to all information held by a local authority.  You should seek clarification from the planning authority of the legal justification for withholding these items and consider a complaint to the Information Commissioner.

I am currently researching retail provision within a district in preparation for a forthcoming planning inquiry into a food store proposal. It is essential to our case that we obtain accurate floorspace figures for existing stores. However, when I have tried to obtain copies of approved site layout plans local authorities have said that these cannot be provided due to copyright restrictions. Is this correct?

Sec 47 of the Copyright, Designs and Patents Act 1988 allows the copying of material kept in public registers without the infringement of the copyright in that material. Thus, as the custodians of the planning register, local authorities may copy any of the material in that register, either for their own purposes or for the purposes of consultation and public information.

At their discretion, they may also allow that material to be copied by others, normally by tracing or photocopying, although under the Copyright (Material Open to Public Inspection) (Marking of Copies of Plans and Drawings) Order 1990 (S.I. 1990 No. 1427) any copy of a plan or drawing provided in this way should be marked as has having been made in accordance with the provisions of the Act. Further copies cannot then be made without the prior permission of the copyright owner.

However, Sec 46 of the Act expressly provides that copyright is not infringed in relation to anything done for the purposes of a statutory inquiry. Therefore, if the copying of food store site layout plans is to be used to inform evidence to be submitted at a future planning appeal inquiry, this is permissible under the Act.

An application to redevelop a commercial yard for two houses was withdrawn following six months of submissions and meetings with the planning authority, as it required the site to be marketed for a while as employment land. This took some time to organise and for the agent to write a report. Subsequently, the authority refused to accept a new application as a free resubmission. As the authority prompted the delay, surely this is unreasonable behaviour?

Under the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989, the planning authority has no discretion to accept a resubmission of an application without a further fee if it is made after 12 months from the date that the original application was withdrawn. Whether the authority behaved unreasonably in this case may depend on whether it justifies its actions within the context of development plan policy resisting the loss of employment-generating sites and the extent of any pre-application enquiries to ascertain the planning authority’s requirements. But as with the proposed removal of agricultural occupancy conditions, it is normally possible to anticipate the need for such a marketing exercise and to either carry this out or establish at an early stage that this would be unnecessary.

What are the rules about consulting or notifying others when changes are made to an application before it has been decided?  If the amendment is minor, authorities often do not further consult or notify third parties.  More significant amendments, perhaps resulting in revised drawings, would appear to warrant at least a letter to consultees and to any person who has commented on the original application, but this does not always happen. I cannot find anything in the General Development Procedure Order 1995 which addresses this matter. Is there a threshold above which changes would be so significant as to warrant a new application altogether?

Circular 15/92 explains that there is no statutory obligation on planning authorities to publicise changes to applications once they are accepted as valid, even though such matters are often of most concern to objectors. The advice adds that there needs to be a balance between considerations of cost, speed of decision making, and providing a reasonable opportunity for public comment. It will therefore be at the planning authority’s discretion to decide whether further publicity is desirable, taking into account various factors. These are whether substantial objections were raised at an earlier stage sufficient to justify further publicity; the proposed changes are significant; earlier views cover the revised matters; or such matters are likely to be of concern to parties not previously notified. No guidance is offered on what constitutes a significant change. Clearly this is a matter for the professional judgement of the planning officer dealing with the application. A review of the publicity requirements commissioned by the ODPM and published in June 2004 examines current practice. Recommendations include greater use of online publicity.

A planning authority recently advertised my client’s application in a local paper as a departure from the development plan, despite a lengthy section in an accompanying Environmental Statement (ES) explaining why it accords with a statutory local plan adopted in about 1984, which has never been replaced. Letters sent over a two month period seeking an explanation from the authority have not been answered and a decision on the application is now awaited.  I am concerned that the authority’s early decision to advertise the application as a departure could prejudice its full and proper consideration. Can this be challenged and is there any right of redress?

I can find nothing in the statutory provisions under Article 8 of the Town and Country Planning (General Development Procedure) Order 1995 or in guidance in Circular 15/92 on publicity requirements that enables such a challenge or remedy. Despite the conclusions of the ES, whether the proposal is in accordance with the development plan may be unclear and therefore a matter of interpretation and dispute. But the fact that the application was advertised as a departure does not tie the planning authority or imply that it will be refused, particularly if the development plan is now out of date and thus of little relevance. If you feel members are being misled, you should consider lobbying them direct. And if the authority misinterprets its policies, this might justify an application for costs on the event of an appeal.

Should the fee for an application for full planning permission for 10 static caravans on agricultural land be £220 for change of use or £2,200 on the basis of £220 for each residential unit?

The answer depends on whether the caravans involve operational development. If they fall within the statutory definition of a caravan given in the Caravan Sites and Control of Development Act 1960, as supplemented by sec.13 of the Caravan Sites Act 1968, the application should be assessed as a change of use of the land on which the caravans are to be sited. The definition of a caravan includes "any structure designed or adapted for human habitation which is capable of being moved from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer) and any other motor vehicle so designed or adapted", subject to certain exceptions. Twin-units, comprising not more than two sections, constructed or designed to be assembled on site by means of bolts, clamps or other devices, and not exceeding 60 feet in length, 20 feet in width and 10 feet in height are also included.

Thus any structure falling outside these transportability and dimensional criteria, or having a sufficient degree of permanence, for example through adaptations to physically attach it to the ground or to connect it to main services will involve operational development. Such units are normally found at a static caravan site and will be classed as "dwellinghouses". The application fee should be calculated accordingly.

A county council has identified a site on land that it owns for a building for adults with learning difficulties, although there seem to be few planning reasons for its choice and it appears to be contrary to an emerging local plan. Does the county council need express permission for development on land within its ownership?

Express permission is required for the proposed development regardless of whether it is on council owned land. Under regulation 3 of the Town and Country Planning General Regulations 1992, generally a local authority will make an application to itself to develop land under its control, in the same manner as other planning applications, although this cannot be determined by any member or officer responsible for the management of any land or buildings to which the application relates. However, where an authority has an interest in the land but does not propose to carry out the development itself and, were it not for that interest the application would be determined by another body, under regulation 4 the application must be made to the responsible development control authority. In this case, that would be the district council. Where a planning authority proposes to grant permission for the development of local authority land which does not accord with one or more provisions of the development plan, under the Town and Country Planning Directions 1999, it is required to notify the Secretary of State of the application. The regulations are explained in circular 19/92.

My client’s application for a dairy unit was accepted by a planning authority to be valid. Subsequently, it was amended to relate to a larger building but was otherwise unchanged. However, following re-consultation, site meetings and some seven weeks, the planning authority now says that it will no longer process the application because of a shortfall in the fee.  It insists that the application be withdrawn, apparently so that it does not overrun the eight week target, and is resubmitted with an increased fee. The merits of the proposal, policies and other considerations all remain the same. I thought that once an application had been validated and accepted an authority was unable to require an additional fee?

Cancelled circular 22/88 advised that it may be sensible and time-saving to allow applicants to amend "small details" of full applications if this would avoid the need for a fresh application, so long as the amendments do not materially change the character of a development. But current circular 31/92 states that the fee is always determined on the basis of the application as made. Thus even if an application is amended by agreement with the authority there is no provision under the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 to make an additional charge. So if in this case the planning authority agreed to your client’s amendment to the application, as would appear from its willingness to re-consult, in my view it would now be unreasonable not to continue to process the application. However, if on receipt of the proposed amendments the authority indicated that these would materially change the character of the development, it is within its rights to insist on a fresh application.

In 2003, permission was granted for a calf shed on a greenfield site. Subsequently, permission was refused to retain a residential caravan and storage container later brought onto the site for use while the calf shed was being built, as was permission for an existing fence. Negotiations to secure the removal of these unauthorised developments have failed. Investigations prior to enforcement action reveal that the applicant does not own the entire site, despite having stated this repeatedly in the land ownership certificates accompanying the recent applications. Does this now make the permission for the calf shed unlawful?

While it is clear that an application should not be accepted with no certificate, the status of a decision made where it later becomes clear that there has been some irregularity continues to create some difficulty. In R v Bradford-on-Avon UDC [1964] it was held that a factual error in a certificate did not deprive an authority of jurisdiction, but this was modified by Main v Swansea City Council [1984]. Here, the courts ruled that the nature of the irregularity was important, having regard to the identity of the applicant for relief, the lapse of time and the effect on other parties and the public. Thus in certain circumstances the irregularity may be sufficient for a court to strike down the permission. But for this to happen in this case, I think it would be necessary to demonstrate that other owners of the site have been materially disadvantaged by the applicant’s failure to give notice of the proposed calf shed.

An application has been made by a limited company that Companies House denies exists. As the company name was included in a public notice, I argued that it was misleading. The planning authority has repeated the error in its re-notification of interested persons following receipt of amended plans. Can the authority continue to knowingly perpetuate this untruth?

Authorities must treat the information in applications in good faith and are under no obligation to verify every statement of fact. However, where a third party has questioned some factual aspect that could have a material bearing on the planning merits of the proposal, in my experience it is normal practice for the authority to ask the applicant to clarify this. But the courts have held that a factual error does not deprive an authority of jurisdiction and, for an irregularity to justify any subsequent permission being struck down, there would need to be evidence of some demonstrable prejudice suffered as a direct consequence of such misinformation.

A planning officer says there is no objection in principle to a new house within a residential garden in an established village. However, as the site is on a slope, the officer insists on a detailed application to demonstrate an acceptable design in relation to ground levels. But if permission is granted, the owner intends to sell the site and is therefore reluctant to go to the expense of detailed proposals that might not be of interest to a prospective buyer and which could be refused on design grounds. The site is not in a conservation area or any other area of special control. Is the planning authority being reasonable?

I suspect that the officer’s comments on the principle of the development were intended to mean that there is no policy presumption against new housing in this location, rather than that a new house on this particular sloping site would necessarily be acceptable. In such circumstances, it is common practice for detailed drawings to be required at the outset and, in the case of an outline application, these may be secured under Article 3 (2) of the Town and Country Planning (General Development Procedure) Order 1995. Their purpose would be to demonstrate that the site can be developed satisfactorily and to enable an assessment of the effect of ground works and any unusual design response required on the character and appearance of the area and the living conditions of neighbouring occupiers. I therefore consider that the authority’s approach is reasonable.

There is a school of thought that the red line on an application plan should not only define the site boundary but also include any access needed to join with a public highway. Is there any case law on this?

While there is no statutory requirement for an application site to include access to a public highway, usually it makes little sense to omit this and most planning authorities insist on such information being shown, in accordance with guidance on application drawings in the joint government and CABE publication By Design 2000. The Town and Country Planning (Applications) Regulations 1988 require only that applications be accompanied by a site plan sufficient to identify the land to which the application relates and such other plans and drawings as are necessary to describe the development. However, access is clearly a key planning consideration and an authority is able, under regulation 4, to direct the applicant to supply any further information and, except in the case of outline applications, which are subject of separate provisions under Article 3 of the GDPO 1995, plans and drawings necessary to enable the application to be determined. I can find no relevant case law.

Response

I have discussed this matter with a number of other experienced practitioners who agree that the correct position is as follows. Where a proposed development does not have a frontage onto a public or private highway for access, the essential question is whether any "joining access" involves development. If the proposed development makes use of an existing lawful accessway that is not exclusively part of another, separate curtilage, then the access land need not form part of the application site. But even where use is to be made of an existing access that is exclusively part of another curtilage, it is arguable whether it should be included in the site edged red. This approach does not preclude the planning authority from considering the adequacy of the existing access or the impact of any increased use, although these would need to be compared with the existing function. However, if as part of the proposed development, the accessway were to be improved and that amounted to development requiring permission, the land providing the access would need to be included in the application site. The Inspectorate has accepted several appeals involving development that has followed this approach.

Section 62 of the Town and Country Planning Act 1990, as amended, says that an authority may require that an application for planning permission must include "such particulars as they think necessary", provided these are not inconsistent with the regulations. Regulation 3(1)(b) of the Town and Country Planning (Applications) Regulations 1988 requires applications to "include the particulars specified in the (application) form". It is the practice of my authority to require that the red line extend to the public highway and this is stated in its application forms.

I am dealing with an application for full permission to redevelop a former hotel for housing and various retail, business, community and recreational uses. However, only details of the housing have been submitted as the developer wishes to retain flexibility over the remaining uses. Since the former hotel included space for community functions and an indoor swimming pool open to the public, the planning authority wishes to retain such uses on the site. When questioned, the applicant advised that his approach had been accepted by other planning authorities.  But whilst conditions could be imposed to control the respective uses, the applicant’s approach does make it difficult to assess all the potential effects of the proposal. Can the authority insist on the submission of a clear breakdown of the floorspace for all the proposed uses?

It seems perverse to seek full permission for a development without providing all the necessary details. The application appears to be either an outline application supported by details of the housing element or a hybrid combining an outline application with one for full permission. I agree that without some indication of the scale and disposition of the non-residential uses it is not possible to assess properly their impact. However, it is open to the authority under regulation 4 of the Town and Country Planning (Applications) Regulations 1988 to direct the applicant in writing to supply any such further information and any plans and drawings necessary to enable the application to be determined.

Is there any authority for the view that a reserved matters submission is not in law a planning application? Does it amount to details to be submitted in fulfilment of a planning condition or is it a fresh application for permission for which there is power to impose conditions under Section 70 of the Town and Country Planning Act 1990? Put another way, can a reserved matters application lawfully be regarded as a separate entity from the outline permission?

An application for the approval of reserved matters is not one for permission as this has already been granted in outline subject to various conditions. It is an application to discharge those conditions through the submission of details that had not been provided or required at the outline permission stage when the principle of the development was the considered. The relevant authorities are found in sec 92(2) of the 1990 Act and in the Town and Country Planning (General Development Procedure) Order 1995. The Order defines the reserved matters as the siting, design, external appearance, means of access, and landscaping of the site. A reserved matters submission is therefore inextricably linked to the outline permission and cannot be severed from it. Circular 11/95 explains that the only conditions that may be applied when the reserved matters are approved are conditions which directly relate to those matters.

The General Development Procedure Order 1995 requires local authorities to maintain a planning register with a copy of every application and related documentation. Is there a specific length of time for which applications must be kept on the register, or can copies before a certain date be disposed of?

Pursuant to section 69 of the Town and Country Planning Act 1990, Article 25 of the Order requires that the planning register be kept in two parts. Part I is required to contain a copy of each "un-disposed of" or current application, with its accompanying plans and drawings, including any for the approval of reserved matters or for certificates of lawfulness. Copies need only be retained until finally disposed of in accordance with the terms of paragraph 11 of the article. However, Part II of the register is a permanent record of all applications and decisions taken on them, including any order made concerning the application or subsequent appeal and its outcome.

I am finding it increasingly difficult to obtain pre-application advice from any planning authority due to "lack of resources". I am generally instructed to prepare and submit drawings for such advice without the benefit of a site meeting with a planning officer.  Depending on the proposal, these drawings can be very costly and I am therefore reluctant to recommend to clients that this expense be incurred at such an early stage without an authority’s pre-application advice. Is there any government guidance on this matter?

Paragraph 12 of recently issued PPS1 advises that planning authorities and applicants should take a positive attitude towards early pre-application discussions so that applications can be dealt with in a more certain and speedy manner and the quality of decisions can be better assured. Many authorities have adopted their own procedures for dealing with pre-application enquiries. However, the problem has been that until recently authorities have often found it difficult to justify diverting resources away from processing applications for which the appropriate fees have been paid, particularly as case law had established that that they were not able to charge for such an activity. This has now been made possible by sec 93 of the Local Government Act 2003. Although some authorities have already introduced a system for charging for pre-application advice, it remains to be seen whether this will make it easier to obtain such advice or whether it will be more cost-effective from a prospective developer’s point of view.

I had a case recently where an authority had not notified adjoining occupiers of an application for a first floor balcony to a dwelling. Instead, the authority relies on site notices. In this case it had placed a single notice on a lamp post on the other side of the road, opposite the site. But by the time my elderly client had seen the notice, he believed it was too late for him to comment. What are the requirements for such notification and can the authority’s practice be challenged?

The General Development Procedure Order requires that such an application be publicised either by site display in at least one place on or near the land to which the application relates for not less than 21 days or by serving the notice on any adjoining owner or occupier. Circular 15/92 explains that a site notice should be visible and legible to passers-by but where it is particularly prone to problems from the weather and vandalism, neighbour notification is preferable. In addition, those invited to express their views should be made aware that failure to meet the deadline may jeopardise the chances of their comments being considered. The Circular adds that neighbour notification may also be the more appropriate method where interested parties are limited to those living close by. But site notices are more effective where there is doubt about who interested parties are or where the development is likely to be of wider interest.

A planning authority has cashed my application fee cheque but has refused to register my application. I had always understood that if an authority banks the relevant payment, the application is effectively registered.  Am I correct in this view?

I can find nothing in current legislation, associated regulations or best practice on the registration and validation of applications that supports your understanding. However, the validity of a planning application does not depend on the payment of a fee, although Article 20(3) of the General Development Procedure Order provides that the period within which the authority must issue its decision does not start until it has received both a valid application and the required fee. While it might be that the authority was merely following best financial practice guidelines for handling payments it receives, it does seem unreasonable that it should bank your cheque before it has registered the application.

Response

It was established in R v. Bath and North East Somerset (BANES)DC [1999] that it is not open to a planning authority to question the validity of an application. It must be determined in the form in which it is submitted, failing which the normal right of appeal against deemed refusal arises. It follows from this that upon receipt of an application form and the correct fee, the planning authority is bound immediately to register the application. The 8-week and 13-week periods starts to run forthwith, even if the authority has failed to register the application. Only if the application were so thoroughly defective as not to amount to an application at all would the authority be entitled not to register it. If it feels it needs further information, the authority can ask for it, but it cannot delay registration of the application in the meantime.  However, if sufficient information is not submitted either with the application or subsequently to enable the application to be properly assessed, then the authority would be entitled to refuse the application.

These comments should be treated with caution. I have read the transcript of the BANES judgement but do not agree with the respondent’s interpretation. The Court did not rule that an authority could not question the validity of an application, merely that Article 20 of the General Development Procedure Order does not provide that this is solely within the authority’s jurisdiction. It therefore also extended to the Secretary of State on appeal. The court also agreed that the time periods for determining applications starts running once a valid application has been received and, under Article 5(4) of the Order, an authority is entitled to determine that an application is invalid by reason of a failure to comply with the applications regulations. Nor is the respondent’s advice on all fours with the ODPM’s Best Practice Guidance on the Validation of Planning Applications, published in March this year.

Increasingly, householders are looking to extend their homes through the creation of basement accommodation. This will often involve underpinning a party wall with foundations that go beyond the property's boundary. In such cases, do you consider that an applicant for permission can sign Certificate A or should notice be served on the adjoining owners and Certificate B completed? The matter is, of course, covered by party wall legislation. However, a planning authority has recently queried the submission of Certificate A, even though other authorities have previously accepted this. What is your view?

If a proposed development involves works that would encroach on or undermine any property that is not under the control of the applicant, certificate B must be completed and notice served on the affected landowner, where their identity is known. This will ensure that they are aware of the application and can comment accordingly.

There is a difference of opinion at my authority over applications for the approval of Reserved Matters (RM). One view is that, to assist the applicant, all conditions of the outline permission should be repeated on the RM approval. But it is my view that the RM are clearly defined in the General Development Procedure (Scotland) Order 1992 as siting, design, means of access, landscaping and external appearance and, as such, all these issues need to be considered as an RM application. What therefore is the legality of imposing all conditions of the outline permission on the subsequent RM?

Scottish Executive Circular 4/1998 contains advice on the use of planning conditions. This makes clear that any approval of reserved matters does not constitute the granting of a further planning permission. Therefore any conditions relating to anything other than the reserved matters should be imposed when outline permission is granted. The only conditions which can be imposed when the reserved matters are approved, the circular continues, are conditions which directly relate to those matters. There is thus no need to repeat the conditions of the outline permission and to do so would defeat the object of the reserved matters approval stage, which is to deal with the matters of detail that were not considered when the principle of the development was approved.

In 1996 outline permission was granted for a house and two bungalows.  Rather than seek approval of the reserved matters, my client then applied for full permission for the bungalows, which was granted. However, full permission was later refused for the remaining house on the grounds that it would be out of character and contrary to a recently-introduced moratorium on new housing, as permitted housing within the area exceeds Local Plan requirements. A previous proposal had also been refused and dismissed on appeal. The authority argues that as no application for reserved matters approval was ever made, the outline permission has now lapsed. This appears to be a fair interpretation of the legislation. But since it was clearly my client’s intention to complete the development permitted in outline, and he sought permission for and built the bungalows within the time limits specified in the outline permission, are there any precedents or provisions to indicate that the outline permission is still alive, thus allowing him to seek approval for the third dwelling?

In accordance with Cardiff Corporation v SoS Wales [1971], a full permission pursuant to an outline permission may constitute an approval of reserved matters under that permission. It is therefore arguable whether the effect of this and the subsequent commencement of development within the requisite time limit would have been to keep the outline permission alive. However, there is a requirement that all the reserved matters must be submitted within the stipulated time limit and that clearly has not happened in this case. While a solution might have been to apply under Section 73 of the 1990 Act for the time limit to be extended, this possibility is now proscribed by Section 51 of the Planning and Compulsory Purchase Act 2004 and, because of the change in circumstances, seems unlikely to have been approved in any event. I therefore cannot see any way in which your client could now justify an application for the third dwelling as being one for the approval of reserved matters.

I have recently experienced difficulties in securing the registration of planning applications where certificate B has been signed. My understanding of Section 65 of the Town and Country Planning Act 1990 is that notices on owners do not need to be served more than 21 days prior to an application being made. The only restriction is that the planning authority is not allowed to determine an application within 21 days of the notice being served. However, two authorities have recently refused to register applications where notices had been served within the 21 day period prior to the application being made. They maintain that the notices must be served 21 days before the application is made. What is your opinion?

The two planning authorities have misinterpreted the procedural requirements. Under section 65 (5) of the 1990 Act, read in conjunction with Article 5 of the General Development Procedure Order (GDPO) 1995, a planning authority "shall not entertain an application for planning permission unless any requirements imposed by virtue of this section have been satisfied". These requirements include the completion of an appropriate certificate stating either that the applicant is the sole owner of all the land to which the application relates or has given notice in accordance with the provisions of a development order. Certificate B falls within the latter category. Section 65(2) of the 1990 Act requires notice to be served on any person other than the applicant "who on such date as may be prescribed by the order is an owner of the land to which the application relates". The date prescribed under Article 6 of the GDPO is 21 days before the date of the application. These requirements do not mean that an application cannot be made until 21 days after the requisite notice has been given but, as you say, that the planning authority may not proceed to determine an application that is accompanied by certificate B until 21 days has passed from the date on which the notice was served.

Article 3(2) of the General Development Procedure Order 1995 provides that where an application for outline permission is submitted, if the authority considers that further information is required in order for the application to be determined, it can request this within one month of the application’s receipt. However, if the authority requires the submission of full details does the application then become a full application for which the authority is entitled to demand the appropriate fee? In such circumstances, does the 8 week period re-start on receipt of the full details?

Although planning legislation and guidance is silent on this matter, it is axiomatic that if an applicant is required to submit full details then the application becomes one for full permission. It cannot proceed as an application for outline permission as there are no matters that can be reserved for subsequent approval, other than certain technical aspects that can be dealt with by condition. However, that does not mean that where an authority requires an application to be converted into a full application, for example in the case of a sensitive site where considerations of scale or visual impact may be crucial, the application fee will change accordingly. Circular 31/92, which explains the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1992, states that "the fee is always determined on the basis of the application as made". The circular adds that even where an application is adjusted or an outline application needs to be supplemented by details before it can be determined, there is no provision in the regulations for the payment of an additional fee. Best Practice on the Validation of Planning Applications advises that once an application has been validated the only circumstances when the start date for the 8 or 13 week target periods can be amended is when the original application is found to be invalid following registration. This does not apply where the authority requires additional information to determine the application.

I recently assisted a group in opposing a proposed residential development on a sloping site close to a conservation area. Following strong objections to the loss of mature trees, the council made a Preservation Order which meant that the submitted scheme could no longer be built. The applicants then re-sited the proposed building to avoid the protected trees but failed to alter the elevations, even though because of the changes in ground level these were no longer accurate. The authority did not re-consult objectors on the revised plans. In spite of this and a recommendation for approval, the application was refused. Should an authority accept such changes without requiring a fresh application or a further round of public consultation and if permission had been granted would this have constituted grounds for a judicial review of the decision?

Ministerial guidance is that it may be sensible and time-saving to allow applicants to amend "small details" of full applications before a decision is made if this will avoid the need for a fresh application, so long as the amendments do not materially change the character of the proposed development. This is therefore a matter for the professional judgement of the planning officer. Circular 15/92 explains that there is no statutory obligation on planning authorities to publicise changes to applications. Nevertheless, the circular acknowledges that such matters are often of most concern to objectors and it will be at the discretion of the authority to decide whether further publicity is desirable, taking into account certain considerations. These are whether:

•    any objections raised at an earlier stage were substantial enough in the authority’s view to justify further publicity;

•    the proposed changes are significant;

•    earlier views covered the matters now under consideration;

•    the changes would be likely to be of concern to parties not previously notified.

Although it is arguable whether in this case the changes were significant enough to warrant re-notification of objectors, had permission been granted I think it very unlikely that this would have constituted grounds for a review of the decision by the courts.

My authority has always calculated application fees by measuring the development’s external floor area. An agent has asked us to explain where in the regulations it says that floor space should be measured externally. He argues that the fee should be calculated on the internal floorspace created. Can you please advise?

The fee categories set out in the schedule to the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989, as amended, refer specifically to gross floor space. Article 13 of Part 1 to the regulations makes it clear that the fees shall be ascertained by external measurement of the floor space, whether or not it is to be bounded wholly or partly by external walls of a building. This is reinforced by guidance in Circular 31/92, which points out that the gross amount includes all storeys to be created and that the external measurement includes the thickness of external and internal walls. It adds that floor space does not include other areas inside a building that are not readily usable such as lift-shafts, tanks, and loft spaces. Planning authorities and applicants should follow the Code of Measuring Practice prepared by the RICS and ISVA. The code is available from the Royal Institution of Chartered Surveyors and has been prepared by its property measurement group. It provides succinct and precise definitions to permit the accurate measurement, calculation of sizes and description of land and buildings and is accepted as the industry standard when arbitrating in measurement disputes.

An application for a certificate of lawfulness (LDC) for a caravan was refused because there was a very short period within the required ten years for which no evidence was produced. The applicants can provide this evidence, but failed to do so because they did not think that it would be necessary. The authority took nine months to determine the application and did not ask for further information. Are the applicants entitled to a free resubmission or must they take the matter to appeal? If so, do they have any redress against the authority for unnecessarily prolonging the proceedings?

The fees regulations provide that a disappointed applicant for an LDC is entitled to a free go where the fresh application is made within 12 months of the date of refusal, is for the same description of development and relates to the same site. Circular 10/97 explains that the onus of proof in such applications is firmly on the applicant. It states that the fact that an LDC may be refused because the onus of proof is not discharged by the applicant does not preclude the submission of a further application if better evidence is subsequently available. I take this to mean that there is no obligation on the part of the authority to request further information. The courts have held that short periods of inactivity in a use need not necessarily prove fatal and thus an appeal may be justified in this case. On appeal, costs may be awarded on the grounds of unreasonable behaviour although I think it unlikely that the authority’s refusal to seek further information would result in a successful award.

Outline permission for 32 houses was granted in 1966. Later that year, full permission was granted for 14 houses as the first stage in the scheme. Reserved matters approval for seven houses followed in 1978 and these were built. My practice recently submitted an application for approval of reserved matters for a further three houses pursuant to the outline permission. The planning authority has refused to register the application, arguing that under Sec. 91 of the Town and Country Planning Act 1990 and Schedule 24 of the Town and Country Planning Act 1971 the outline permission lapsed in 1972. Do you agree?

Sec. 91 deals generally with the duration of permissions while Schedule 24 continues to apply to outline permissions granted before 1 April 1969. The effect of paragraph 20(1)(a) of the schedule is that all reserved matters were required to have been approved by 31 March 1972, unless the permission was subject to a condition expressly requiring the submission of reserved matters by a specified date or within a specified period. Although more than one application for approval of reserved matters may be made in respect of the same or different parts of a site or at different times, these must all be submitted within the prescribed period. The approval granted in 1978 appears to have been an anomaly, so I agree with the planning authority that the outline permission has expired.

A planning authority insists on a certificate B notice being served on the highway authority where a pavement crossing is proposed to serve one or two dwellings set out in an outline application. Although the highway authority is not the landowner, I go along with this requirement for the sake of my client. However, I cannot help but think this is wrong. What is your view?

A crossover is not in itself development by virtue of Sec. 55(2)(b) of the Town and Country Planning Act 1990, which exempts "the carrying out by a local highway authority of any works required for the maintenance or improvement of a road, being works carried out on land within the boundaries of the road". Regardless of the highway authority's interest in the land, there is no need for an applicant to serve notice on the authority in these circumstances.

How should the application fee for a wind farm be calculated where it takes up a substantial proportion of agricultural land and includes five turbines with hardstandings, one guide mast, site access and a building? Should the curtilage area of the fields be included in the site area or not?

Judging from the response to the ODPM’s consultation papers issued in 2004 on proposed changes to the planning fees regime, the calculation of fees for such developments has evidently caused difficulty for the wind energy industry. This is because of the inherent need to have a widely drawn red-line boundary to allow for site optimisation and environmental, ecological and engineering mitigation measures. Despite the relatively low site coverage by roads, turbines and buildings, wind farm application fees are usually calculated on the full extent of the application site, including any intervening land that may remain in agricultural use. This means that in the majority of cases such applications will attract the maximum fee.

Response

My authority is expecting around five wind farm applications in the next six months and contacted the ODPM to seek clarification on fees. It advised that while there are no central guidelines on how wind farm fees should be calculated, it is currently carrying out a research exercise with a number of authorities that have dealt with such applications to find out how and at what level fees are set. There appears to be a consensus that the site area should be used and that such applications fall into the category of plant and machinery, which is category 5 in the fees Schedule. According to the ODPM, the fees charged by authorities differ because the extent of the red line can vary and it is really for the authority to decide what determines the site area and whether to include or exclude roads and other plant. Once the research is finished the ODPM may provide advice in the revision of the fees circular if it seems necessary. In the meantime, my authority intends to include the curtilage area of the fields in which the turbines would sit in order to secure a fee that is commensurate with the complexity of such applications and to ensure that the detailed siting of turbines is covered within the red line. Another concern is the mixture of Electricity Act and planning applications expected, since applications to the DTI do not require any payment of fees to the authority at all.

My authority takes the same view as the respondant. To ensure that it would receive a payment commensurate with the nature of the proposal, it includes the whole of the curtilage of a wind farm in its application fee calculation. It is understandable that certain developments associated with a wind farm could be omitted from the site area, either inadvertently or otherwise, thus resulting in a lower fee being payable than is required under the regulations. However, the deliberate inclusion of agricultural land that is not part of a wind farm just to increase an application fee seems dangerous. It would be interesting to know whether there would be any grounds in such circumstances for a complaint of maladministration once a fee had been paid and agreed between the applicant and the authority. Hopefully the ODPM will provide some clarity on this issue.

As Circular 31/92 points out, the regulations provide that refunds may be made at any stage for any sums not required by the regulations. In the event of any dispute over fees, the proper course is for the applicant to appeal against non-determination of the application. The matter will then be considered by the Planning Inspectorate, which must decide whether the Secretary of State has jurisdiction to determine the appeal.

What is the correct legal procedure for copying approved plans from a planning application file after the application has been determined? Some authorities are willing to provide photocopies of all plans but others refuse, citing copyright laws. My understanding is that these allow any material open to public inspection to be photocopied. Is this true?

Sec. 47(2) of the Copyright, Designs and Patents Act 1988 provides that planning authorities may allow the copying of material "open to public inspection pursuant to a statutory requirement", including "for the purpose of enabling the material to be inspected at a more convenient time or place". This appears to have been interpreted by many authorities as meaning that plans may only be copied to allow third parties to comment on an application before it is determined. However, since it is also a statutory requirement under the Local Government (Access to Information) Act 1985 that planning application files be made available for public inspection after an application has been decided, I see no reason why authorities should not permit plans to be copied at that time. Sec. 46 of the 1985 Act expressly provides that copyright is not infringed in relation to anything done for the purposes of a statutory inquiry. So if the copying of the plans is to be used in evidence for a future planning appeal inquiry, this is permissible under the legislation.

Response

Sec. 47(2) of the Copyright, Designs and Patents Act 1988 provides that authorities may copy material to the public without breaching copyright where it is open to public inspection pursuant to a statutory requirement or is on a statutory register. The Act does not require an authority to issue copies of drawings to the public. Practice varies according to local policy guidelines. If copies are issued, they should be provided at cost and contain a stamp stating that the recipient is prohibited from unauthorised copying or reproduction. The 1988 Act took into account the Berne Convention by introducing "moral rights" that have an effect on architects and the subsequent use of their works. These rights remain with the architect and cannot be assigned. Since there is a trend for authorities to publish plans on websites, with some allowing plans to be copied, I would be interested to know how they can control this. Scottish Executive Advice Note 70 on electronic service delivery exhorts authorities to be aware of the 1988 Act and seek legal advice on how it applies to the online planning service. However, under the Freedom of Information Act 2000, an authority can copy any material such as drawings without breaching copyright provided the applicant is advised that the information is for personal use only and cannot be copied further. Often these copies must be issued free of charge. The only way to avoid this is for the authority to ensure that its costs for copying are included in its publications list.

My authority no longer validates applications that meet English Nature's screening criteria unless a bat survey has been carried out in the recent past. Previously it applied conditions requiring surveys to be carried out after permission has been granted. However, following R v Cornwall County Council ex Parte Gwennap Parish Council [1999], where this approach was discredited, the non-validation route is now taken. The authority takes a similar view on certain applications lacking flood risk and traffic impact assessments. If it did not, this would have a serious effect on the eight-week target figures and the planning delivery grant. Are we legally able to do this?

Sec. 62(3) of the Town and Country Planning Act 1990 provides that local authorities may require an application for planning permission to include "such particulars as they think necessary" and "such evidence in support of anything in or relating to the application as they think necessary". Except in the case of outline applications, this may be required by a direction under regulation 4 of the Town and Country Planning (Applications) Regulations 1988. By virtue of Article 5(4) of the General Development Procedure Order 1995, an authority is entitled to consider that an application is invalid due to failure to comply with such a direction. This is reinforced by best practice guidance on the validation of planning applications issued in March, which withdrew the advice in Circular 9/95 that an applicant's failure to respond to a direction does not invalidate the application, so your authority’s approach is justified. Advice on ecological surveys is set out at paragraph 99 of Circular 06/2005. This makes clear that the presence of protected species and the extent to which they may be affected by a proposed development should be established before permission is granted.

Response

You have confused regulations 3 and 4 of the Town and Country Planning (Applications) Regulations 1988. Regulation 3 states that an application must be made on a form provided by the local planning authority, include the particulars specified in that form and be accompanied by plans and drawings necessary to identify the site and the development. Three copies of the form and drawings must be provided. If the applicant does this, the application must be validated. Regulation 4 allows the authority to direct the applicant to supply any further information that is reasonable to allow it to be considered. If this is not done the application may not have to be determined. In my view, Articles 5(2) and 5(4) of the General Development Procedure Order (GDPO) 1995 make it quite clear that, with the exception of Crown land, the only other requirement for an application to be valid is the receipt of the correct fee. If the application does not proceed, it can be appealed as a deemed refusal because it must have been validated under regulation 3. In at least one quite recent decision, an appeal was determined by the Inspectorate even though the authority failed to validate the application because in its view it was incomplete. The ODPM best practice guidance referred to by PM is incorrect on some of these validation issues.

I stand by my advice. Article 5(4) of the GDPO expressly provides that where an applicant fails to comply with the requirements of either regulation 3 or "any other statutory requirement" - which would include a direction made under regulation 4 requiring the submission of further information - the planning authority "shall as soon as practicable notify the applicant that his application is invalid". Any doubt has been removed by the cancellation of the second sentence to paragraph 88 of Circular 9/95, as explained in my reply. The Government has also stated its intention to amend the GDPO to remove any legal ambiguity over an authority's ability to declare any application that does not meet its requirements as invalid. Although there is currently no obligation to do so, these should be set out in a supplementary planning document in the form of validation checklists, in accordance with ODPM best practice guidance. Such documents would provide greater certainty and openness.

I agree with the respondant and consider that the advice given by you is flawed in three respects. First, a direction made under regulation 4 of the Town and Country Planning (Applications) Regulations 1988 creates an automatic and immediate statutory right to appeal, just as though the application had been refused. Second, it is nonsensical to assert that any doubt has been removed by deleting the second sentence of paragraph 88 of Circular 9/95. Planning law cannot be changed by deleting a sentence from an advisory circular. We do not yet have planning law by diktat in the UK, although many local authorities are seeking to cite best practice guidance as if it were law already. Finally, the Government has indeed indicated an intention to change the Order concerning validation of applications, but it has not yet created the required regulation to implement this. Meanwhile, the guidance on the validation of planning applications is, as is indicated at the beginning of the document, a statement of intent and not of the current legal position.

Sec. 78 of the Town and Country Act 1990 does not provide for "an automatic and immediate statutory right of appeal" in such circumstances. However, an appeal may be made against non-determination of the application at the end of the eight-week period. I accept that the best practice guidance does not change the existing law, but that is not what I said. The guidance has not been issued as a consultation paper but is based on the existing legislation, as is made clear in the introduction. While there is no need to rely on future changes in legislation, in my view, these will strengthen existing powers and make them explicit. The cancellation of the second sentence to paragraph 88 of Circular 9/95 in advance of changes to the Order removes an anomaly that militated against interpreting the legislation in the way I have outlined, in accordance with the explanation given in the Encyclopedia of Planning Law.

I agree that your approach is in line with the ODPM best practice guidance, which in itself does no more than "explain" the provisions of current legislation. I am aware of at least two planning authorities that now expressly require not only a description of the application but also the data necessary to determine it before validation. While the ODPM guidance only applies in England, I believe that the Scottish legislation would make a similar approach possible.

Do applications for petrol filling stations require environmental impact assessments?

Filling stations are not listed in the categories of development under Schedule 1 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 for which an assessment is mandatory in every case. So it is necessary to consider the proposed development against the provisions of Schedule 2. This requires an assessment where a development is likely to have significant environmental effects due to specified factors relating to its size, location and character. The selection criteria for determining whether a development would have a significant environmental impact are set out in Schedule 3 and relevant guidance is given in Circular 02/99. But unless it is part of a motorway service area or a much larger retail development, a conventional filling station would not normally require an assessment.

A local planning authority requires the full name and address of an applicant on its application form, even when submitted by an agent. It claims that under Article 25 of the General Development Procedure Order (GDPO) 1995 this is necessary in the interests of transparency and to enable proper consideration. It adds that failure to provide this information may render the application invalid through "procedural uncertainty". I argue that this is neither a national requirement nor relevant when determining an application. As such details are now published on the internet, I am anxious to protect my client’s identity. Is the authority entitled to refuse to register and determine an application for this reason or to sell this information on to third Parties?

At present there are no national requirements for application forms, although a standard form is expected to be introduced in April 2006. In the meantime, Sec. 62 (3) of the Town and Country Planning Act 1990 entitles authorities to require an application for permission to include such particulars as they deem necessary. By virtue of regulation 3(1)(b) of the Town and Country Planning (Applications) Regulations 1988, these include the particulars specified in the form. If the form stipulates that the name and address of the applicant must be identified and this is not done, the authority is able to declare the application invalid under Article 5(4) of the GDPO. Except in the case of applications for LDCs, Article 25(6) does not explicitly require the planning register to include the name and address of an applicant for permission. But this seems a reasonable requirement and there may be procedural implications in assessing the application against provisions relating to exemptions from fees and so forth. As far as the merits of the proposed development are concerned, I agree that in most cases the applicant's identity will be irrelevant. I have no knowledge of an authority's rights to sell on details of applications to other parties. Can any reader help?

Response

When processing personal information, local authorities are required to comply with the "eight data principles" set out in the Data Protection Act 1988 and must register the use of such data. This will confirm exactly what the authority does with the information. Failure to comply with these principles means that the law has been broken. Principles 1 and 2 state that any personal data shall be processed fairly and lawfully and that data supplied for a specific purpose, such as a planning application, cannot be used for another purpose without the "data subject" being both aware of the proposed use of the data and supplying written agreement to this use. Application forms or guidance should indicate what happens to the data and make it clear that the information will be placed on the council's website. If an authority decides to sell this information, it must seek written approval from the applicant. Although weekly lists can be reproduced on council websites and the planning application form and drawings are available to be viewed by the public, it is an offence to sell the information received by the planning authority to other parties if any lists produced include the details of "living individuals" without their written approval. Companies are not covered by the Act. Under the Freedom of Information Act 2000, local authorities should publish what information is available and whether or not there is a cost in obtaining it. If lists are sold, they should be on the publications list. If they are not, they may be available under this Act at no cost.

There seem to be at least two ways around this problem. Firstly, the agent or another third party could choose to be the applicant so that a name goes in the box on the form. In doing so, ownership certificate B would be completed, so that if the "shy" applicant has an interest in the land his or her identity would be disclosed, though not as the applicant. Secondly, an appeal could be lodged once eight weeks have elapsed from the date that the authority received the application and the Inspectorate would then need to decide whether it is a valid application.

One firm of local architects I know always puts the applicant's address as care of the agent on its forms. This no doubt means that any junk mail, including letters from planning consultants offering to fight an appeal if permission is refused, goes directly to the architects so that it is more likely that they will handle such an appeal. While the firm is reputable, this practice does raise a concern for me. It is possible that an issue might arise regarding ownership certificates. In theory, it may be considered appropriate to initiate a prosecution action. Without an applicant’s address, this could prove difficult. I would suggest that the law needs to be clarified by introducing a requirement for the address to be put on the application form.

A planning fee of £1,540 was paid for an application for retrospective permission for a house in multiple occupation (HMO) after the local planning authority maintained that it had resulted in the creation of seven home units, despite residents having to share cooking and washing facilities. The application was withdrawn but resubmitted and refused. A subsequent enforcement notice alleged that the breach of control related to a change of use to an HMO, for which a fee of £530 was required. The fee took into account an increase in planning fees and payment to the Planning Inspectorate. The notice was not appealed. I contend that the fee for the original application, which was submitted by another agent, was incorrect as the development was in fact an HMO. The authority claims the amount required by the enforcement notice was wrong, that there has been no overpayment of fees and that there is no mechanism to refund fees once an application has been validated and determined or withdrawn. What is your advice?

From what you say, the development appears to have involved a change of use to an HMO and not the creation of separate households. The application fee should have been assessed accordingly. Relevant guidance is set out in the annex to Circular 31/92. This explains that the Town and Country Planning (Fees For Applications And Deemed Applications) Regulations 1989, as amended, do not provide for the refund of correct fees for valid applications once these have been accepted. But refunds of fees for applications rejected as invalid and "of any sums not required by the regulations" may be made at any stage. The circular goes on to explain that once the correct fee has been paid and the application registered, there is no mechanism for refunding fees where the application is adjusted by agreement. But it does not deal with any other circumstance. In practical terms, since there is no disputes procedure in the regulations and the opportunity for an appeal to the Secretary of State on this matter has been missed, I think it would now be almost impossible to recover what seems to have been an overpayment.

If a cheque for an application fee is not honoured by the bank, is this a valid reason for stopping the clock running on the application? Are there are other situations where such action would be justified?

The effect of Article 20(2)(c) of the General Development Procedure Order 1995 is that where an application fee has been paid by a cheque that is subsequently dishonoured, the clock will be stopped. It will only recommence on the date that the authority is satisfied that it has received the full fee. ODPM best practice guidance on the validation of planning applications makes clear that if an apparently valid application is later found to be invalid following registration, the original start date for processing the application should be disregarded. The eight or 13-week period should start again on the date the application is made valid. These are the only circumstances in which stopping the clock would be justified.

Response

You suggested that the only circumstances in which the eight-week clock can be stopped and restarted is where the fee cheque bounces. Would not the same issue arise where an applicant's ownership certificate proves to be incorrect, such as through a neighbour's successful challenge? Without the correct certificate, I would expect the application to be invalid.

In my reply I also said that the clock could be stopped where an application is found to be invalid after registration. In some circumstances this would include the submission of an incorrect ownership certificate.

The original PPG1 said that decision-makers should take into account whether a proposed development "would cause demonstrable harm to interests of acknowledged importance" and that conflict with development plan policy alone was insufficient to justify refusal. Since this advice is omitted from PPS1, does this mean that where material considerations do not indicate otherwise a proposal will fail simply if it is contrary to the development plan, even if it causes no demonstrable harm?

Sec. 38(6) of the Planning and Compulsory Purchase Act 2004 and paragraph 10 of the companion guide to PPS1 make it clear that applications must be determined in accordance with the statutory development plan unless material considerations indicate otherwise. As you say, there is no longer any reference to "demonstrable harm". However, if a proposal would conflict with a development plan but would not cause what is now often referred to as unacceptable harm, this will be a material consideration that could justify permission. Such circumstances can occur where the development plan is out of date and is no longer relevant to the proposal under consideration.

When receiving speculative applications for commercial development, my authority takes the view that each proposed use attracts its own fee. For example, a development of 1,000m2 would require a fee of £3,710 for each alternative use. If a developer wanted to use the building for either B1, B2 or B8 purposes the fee would be three times £3,710. Developers are concerned that this interpretation of the regulations is different from surrounding authorities. Have we got it wrong?

In my view, such an application should be treated as being one for alternative development, in accordance with paragraph 21 of Circular 31/92. This explains that to avoid discouraging the submission of alternative proposals for the same site, a special fee concession applies where proposals are submitted on the same date and by or on behalf of the same applicant. The concession applies "regardless of whether the alternative proposals are contained in one or several applications". Fees should first be calculated separately for each alternative. The total is then worked out by adding to the highest of these amounts half the sum of the other separate amounts. If in the example you give the proposed development involves a new building, the fee payable should be £7,420.

My authority has received an application for a nearly complete building designed and intended for residential use. Despite replacing a demolished barn, the proposal is described as "part retrospective barn conversion to holiday lets". I am concerned that local residents may not realise that the application is in fact for a new building. Must the authority publicise applications based on the description of the proposed development given on the application form or is it able to change this to reflect what it considers is proposed?

It is not uncommon for applicants to supply misleading descriptions to make applications seem more acceptable. However, the courts have held that the scope of a planning permission is defined by the terms of the application. An authority is not entitled to alter fundamentally the development proposed by an applicant. If your authority is not satisfied that the description accurately reflects what is proposed, it should require clarification and amendment before validation and consideration.

Response

I would question whether authorities can legally require an applicant to provide information that would involve gaining access to land in third party ownership when such access might well be denied.

This is a fair point. Clearly it would be unreasonable for an authority to require an applicant to verify matters that depend solely on access to land over which they have no control. However, I cannot imagine that such circumstances would arise very often or that it would be impossible for an applicant to establish the height of adjoining buildings by other means, without entering such land.

My authority is considering an application validation checklist as a supplementary planning document (SPD) in line with ODPM best practice guidance. However, I have seen references to SPDs on validation in local development schemes with comments from the relevant Government office that an SPD is not the right approach. Has there been a formal statement from the ODPM on this?

Although I am not aware of its status, recent correspondence I have seen makes it clear that in the light of some of the issues raised since publication of its best practice guidance, the ODPM now considers that the use of an SPD for a validation checklist would be inappropriate because:

•    It is unlikely that such an SPD would meet the relevant statutory and regulatory requirements.

•    The ODPM wishes to keep the number of local development documents to a minimum.

•    It wants to encourage authorities to move away from a manual of development control details in local development frameworks and concentrate on more strategic spatial policies.

•    Validation documents would be valuable as support for statements of community involvement rather than SPDs.

Where a submitted local development scheme contains an SPD on validation, the ODPM advises that it should be removed in a subsequent scheme. The best practice guidance is seen as an interim document that will need to be updated when changes are made to the General Development Procedure Order 1995. The ODPM will use that opportunity to clarify the position about validation checklists and SPDs. In the meantime, you should discuss the matter with your Government regional office.

My borough has two conservation areas whose distinctiveness is derived largely from their late 19th century garden suburb character, with holly hedges bordering many streets. With increasing pressures on on-street parking, many homeowners are grubbing up these hedges to park in front gardens. My authority is considering making an Article 4 direction covering hardstandings and footway crossovers, which might indirectly offer some protection for the hedges. Can it do anything else?

This issue was raised in previous query. The removal of hedgerows does not amount to development or need permission. There is a case to be made for extending such control in conservation areas. Currently this is limited to circumstances where permission is sought for a development, which could include a new access. Where permission is granted, a condition requiring the retention of remaining boundary hedgerows may be justified where these contribute to amenity. But refusing permission for a new access on the grounds of the loss of a hedgerow is clearly difficult, given that an applicant would be entitled to remove it in any event. Apart from applying an Article 4 direction, I can think of no effective way of tackling this problem.

My authority has received an application for a liquid natural gas plant. The applicant company states that it assessed five other sites but discounted these for a variety of reasons. However, we do not consider that the selected site is the best. Can the authority refuse the application for this reason?

The general rule is that in the absence of conflict with planning policy or other planning harm, the relative advantages of alternative sites are normally irrelevant. Their consideration will only be justified in exceptional circumstances, for example in the case of airports, coal mining, petrochemical plants, nuclear power stations or other major developments proposed in the wider public interest. In weighing the need for such development against its conspicuous adverse effects, it may be appropriate to take into account the availability of more suitable sites elsewhere. The issue here is not whether your authority prefers another site but whether the development of the application site would give rise to such a level of harm as to justify consideration of a less harmful alternative. Only where that is so might the authority be able to resist this proposal. However, the consideration of alternative sites is material in applications for phone masts and town centre uses that require a sequential approach in accordance with PPS6.

In 2003 outline permission was granted on appeal for a major mixed-use development. The application for the approval of the reserved matters for the first housing phase required the maximum fee of £11,000. Since the applicant has remained the same, my authority has charged the subsequent reserved matters applications at a flat rate of £265. From 1 April 2005, the maximum fee was increased from £4,750 when the outline application was registered to £50,000. Bearing in mind advice in paragraph 37 of Circular 31/92, is it reasonable to require that all such applications should now incur fees until the value of £50,000 is reached, given that the maximum fee should be applied to "the day the current application was made"?

Paragraph 37 explains that there is a simplified arrangement for charging a flat-rate fee for reserved matters submitted in specified circumstances, including applications made separately for different parts of the site. It says that each reserved matters application will incur a fee at the full rate, whatever matters are involved, until the total amount paid by that applicant in respect of reserved matters equals or exceeds the fee that would have been payable if there had been one application for approval of all reserved matters for the development. The circular explains that when that point is reached, any further application pursuant to the outline permission will attract the flat rate fee of £120. This figure was subsequently raised to £265. In my view, the phrase you mention relates to the date when an application fee first equals any maximum fee in effect at the time. In this case that point has already been reached and must be considered a once-and-for-all event. It would be unfair to interpret the advice otherwise. So you should continue to charge subsequent applications at the flat rate.

My authority has several undecided applications that were submitted more than a year ago. In the usual quest to ensure that applications are dealt with in a timely manner, it is hoped that these "old timers" can be concluded. Where an applicant has not responded to requests for additional information and the application cannot properly be determined, the option of disposal seems to be the only way forward. The only reference to this procedure is at Article 25(11) of the General Development Procedure Order 1995, which relates to keeping a public register and the applicant’s right to appeal. Can the authority dispose of an application by such means? JS.

Sec. 69 of the Town and Country Planning Act 1990, which requires the keeping of a public register of applications and decisions and is supplemented by Article 25 of the Order, also refers to this procedure. Rather than hold an application in abeyance for an indefinite period, it is not unusual for an authority to record that it has been "finally disposed of" where the applicant has failed to submit further information in response to repeated requests, to appeal against non-determination within the relevant time limits or to withdraw the application. Before taking such action, it would be sensible to warn the applicant of this intention in writing. The other option would be to refuse the application. However, that would reinstate the applicant's right of appeal.

I recently submitted an application for five timber-clad caravans or "lodges" in a caravan park that has pitches for both touring and static caravans. I sought permission for change of use, with the appropriate fee, because there are no static caravans on the land in question and all the applications I have ever been involved with or seen have taken this approach. However, the planning authority says the proposal involves the erection of buildings and insists on the application fee being calculated on that basis. Is it correct?

It depends on whether the lodges involve operational development. If they fall within the definition of a caravan in the Caravan Sites and Control of Development Act 1960, as supplemented by the Caravan Sites Act 1968, the application should be assessed as a change of use of the land on which the lodges would be sited. The definition refers to "any structure designed or adapted for human habitation which is capable of being moved from one place to another, whether by being towed or by being transported on a motor vehicle or trailer, and any other motor vehicle so designed or adapted", subject to certain exceptions. Units of not more than two sections, constructed or designed to be assembled on site by means of bolts, clamps or other devices and not exceeding 60 feet in length, 20 feet in width and 10 feet in height, are also included. So any structure falling outside these portability and dimensional criteria, or having a sufficient degree of permanence such as through adaptations to physically attach it to the ground or to connect it to main services, will involve operational development and the application fee should be calculated accordingly.

Response

The dimensions of a caravan have been extended to 20m by 6.8m by 3.05m as a result of an ODPM consultation paper issued last year and the subsequent response.

As far as I am aware, this remains a proposal that is still under consideration by the Government and therefore the dimensions set out in my reply will continue to apply for the time being. Any change will need to be the subject of a statutory instrument in due course. The reason for the proposed change is to enable external cladding to be fixed to caravans that are already the maximum size permissible, to provide greater insulation and energy efficiency.

Is a river a "highway" for the purposes of planning control? My authority has a large navigable river running through its area and someone wishes to extend their dwelling towards it and within 20m. Would this require express permission?

The term "highway" is not defined in the General Permitted Development Order 1995 and is the subject of a recommendation in the ODPM review published in 2003. However, a footnote to paragraph 24 of Circular 9/95, which explains the Order, advises that it includes "all public roads, footpaths, bridleways and byways over which the public have a right to pass". Sec. 336 of the Town and Country Planning Act 1990 states that the term has the same meaning as in the Highways Act 1980. This makes it clear that "highway" means the whole or part of a highway other than a ferry or waterway. So the proximity of any house extension to the river in your area will have no bearing on the permission granted under Class A, Part 1, Schedule 2 of the Order.

Can you please advise where in the fees regulations it explains how to calculate the correct fee for an application for hazardous substance consent? I have looked in Circular 31/92 and other sources but can find no mention whatsoever of fees for such applications.

Circular 31/92 only explains fees payable for applications made under the Town and Country Planning Act 1990. Applications for hazardous substance consent are made under the Planning (Hazardous Substances) Act 1990 and in accordance with the Planning (Hazardous Substances) Regulations 1992, as amended by the Planning (Control of Major-Accident Hazards) Regulations 1999. Regulation 24 of the 1992 regulations sets out the fees payable, which vary between £200 and £400. Advice on the consent procedures and on how these relate to other planning controls affecting hazardous installations and proposed developments nearby can be found in Circular 4/2000 and the ODPM's guide for industry.

The definition of a major development in Circular 15/92 includes cases where the floor space to be created amounts to 1,000m2 or more. However, the General Development Procedure Order 1995 defines such a proposal as including "the provision of a building or buildings where the floor space to be created by the development is 1,000m2 or more". Some authorities class a change of use that meets this criterion as a major development. While I can see how this falls within the definition in the circular, I cannot see how it could possibly fall within that given in the Order. If that were the case, it would really help our performance figures. Is a change of use application for more than 1,000m2 of floor space classed as a major application and are there any cases or other guidance that have clarified this matter?

Although I am not aware of a case where this has been debated, the statutory definition in the Order must take precedence over advice in the circular, which apparently merely paraphrases the definition set out in the 1988 version of the statutory instrument. The legal definition also covers other types of development such as the winning and working of minerals, the use of land for mineral working deposits, waste development, the provision of ten or more dwellinghouses, residential development of a site of 0.5ha or more where the number of units is not known and other developments carried out on sites of one hectare or more. "Major development" is defined in some development control statistics published on the ODPM website as including a proposal where "the floor space to be built is 1,000m2 or more". While I think that there is an argument for including such large-scale changes of use within the definition, it does not seem that they should be counted as major developments for the purpose of measuring application handling times against the Government's Best Value performance indicators.

Response

DETR guidance issued in September 1999 on Best Value performance indicators explained that where a major development is subject to a change of use application it should be coded as a major development, not a change of use. Paragraph 12 states that for such purposes, the terms "built" or "constructed" should be read as including "obtained by change of use" and goes on to give an example of the conversion of a warehouse to 12 flats. Before any financial significance in the interpretation arose, my authority had automatically ascribed "change of use" to many buildings of more than 1,000m2. However, it does not do so now, with the consequential benefits sought by the questioner.

I am trying to establish the correct procedure my authority should adopt for allowing access to planning application files. It does not currently permit access to a live file until three days before the relevant committee meeting and then only to what it considers "background papers". Not only does this seem bad practice, it also causes practical difficulties. Do we have the right to prevent someone from inspecting files before the three-day rule bites or has the Freedom of Information Act 2000 changed this?

Good practice guidance on access to and charging for planning information was issued by the ODPM in September 2004. This explained that the Government is committed to encouraging free access to information beyond the minimum legislative requirements and to making sure that any related charges are reasonable. It states that the public can see committee agendas, reports, minutes and background papers free of charge five working days before a meeting. This is in line with the Local Authorities (Access to Meetings and Documents) (Period of Notice) (England) Order 2002, which extended the three-day rule originally required by the Local Government Act 1972. However, the guidance was issued before the revised Environmental Information Regulations 2005 came into effect early last year. They are explained in a code of practice published by DEFRA in February 2005. The recent Information Tribunal decision in Markinson v Information Commissioner, which considered the issue of "reasonable" copying charges (Planning, 7 April, p2), held that the availability to the public of documents associated with planning applications is subject to the new regulations and not the Freedom of Information Act. If that is so, regulation 5 places authorities under a duty to make such information available "as soon as possible and no later than 20 working days after the date of receipt of the request". There are certain exceptions, including where "the request for information is manifestly unreasonable". But while it is clear that the thrust of recent guidance is that authorities should allow greater transparency and openness in decision-making, the effect of the regulations on the five-day rule is uncertain. Can any reader help?

Response

Although the three-day rule has been extended to five in England, it continues to apply in Wales. The relationship between the revised Environmental Information Regulations 2005, mentioned by you in your reply, and the duty to provide access to planning information in accordance with the Local Government Act 1972 is something that my authority considered recently. In effect, the two requirements are complementary. While planning authorities can continue their practice of publishing papers three or five days before the relevant decision-making meeting, the revised regulations must always be considered in response to any request on a case-by-case basis. The person requesting the information can ask for wider disclosure than the typical definition of background papers would imply, and in advance of the five-day period. While there is a presumption of disclosure in response to any such request, a number of exceptions might apply. There is the "manifestly unreasonable" point, which could be relevant in complex cases. In addition, authorities may feel that regulation 12(1)(4)(d), which exempts material still in the course of completion, unfinished documents or incomplete data, enables them to say that the applicant can have the material when it is published in the normal course of events. Furthermore, regulation 12(1)(4)(e) provides that an authority may refuse to disclose information where "the request involves the disclosure of internal communications". This could be considered to apply where an applicant seeks to go behind what is "normally" published. In either case, the public interest test must always be considered. Also relevant is the time and cost it takes to deal with such requests. A file may, for example, contain material that is exempt because it includes personal data. Time and cost factors may be relevant in considering whether the request is manifestly unreasonable and in balancing the public interest. The key is to ensure that each application is treated on its merits. If there really is no reason not to give someone a copy of the full file ten days before the application is due to be considered, then it should be given and the five-day rule becomes irrelevant. Finally, the 20 days available under the regulations should not be used as a shield. If someone makes a request ten days before the meeting and the authority deliberately leaves it until after it has been held to respond, that is a clear breach of the code of practice under regulation 16 because it was a "policy" decision not to disclose anything until the publication date.

Permission was granted to extend a house in a conservation area and for a garden shed, front gate and rooflight in an existing room. The applicant proceeded with the latter but has not yet built the extension. Does the fact that unrelated elements of the same permission have been implemented mean it is preserved in its entirety and that the extension can still be built?

In accordance with Salisbury District Council v Secretary of State for the Environment [1982], unless a permission is clearly severable, such as in the case of large-scale phased developments subject to separate time limits, the carrying out of a material operation to begin part of an approved scheme is sufficient to lift the time limit for the whole development. The extension can now be built at any time.

Some time ago my client obtained full permission for a new-build Class A3 hot food takeaway. When built, the unit was subdivided by an internal wall and my client has run his business from one half for more than four years. He now wishes to cook and sell different take-away food from the vacant half of the building. The approved scheme showed two separate doors for customers and there will continue to be a communicating door between the two kitchens. The planning authority argues that the development is unauthorised because it is not "in accordance with the submitted floor plans" as required by a condition. It has invited an application for a lawful development certificate (LDC), but given its views this seems pointless. What is your advice?

Unless a condition was imposed expressly preventing the subdivision of the building into two separate units, the erection of the internal dividing wall would not have constituted development or required permission so long as it has not resulted in a material change of use. However, given that the use has only been carried on in one half of the building and that the remainder has remained vacant, no such change of use has occurred. In my view, no change of use is likely if your client continues to occupy both units and they remain connected internally. I would apply for an LDC and appeal against any refusal.

A householder has extended his rear garden to include an embankment shown in local authority records as forming part of an adjoining highway. Despite this, the householder claims ownership of the land. Retrospective planning permission has been sought but not publicised in any way. Article 8(2)(c) of the General Development Procedure Order 1995 requires all applications affecting public rights of way to which Part III of the Wildlife and Countryside Act 1981 applies to be publicised. However, I can find no such requirement for development falling within a highway. This seems to be inequitable. Is my understanding correct?

A right of way is defined as including "a byway open to all traffic" for the purposes of the 1981 Act, but this does not apply to a conventional surfaced road. Under Article 10 of the Order, planning authorities must notify the local highway authority of certain proposed developments and, under Article 15, notify the Secretary of State of certain applications, such as those affecting trunk roads. The development that you mention does not fall within any of the prescribed categories. Nevertheless, Article 8 imposes a duty to publicise all planning applications, either by posting a notice in at least one place on or near the land to which the planning application relates for not less than 21 days or by serving the notice on any adjoining owner or occupier. This should have happened in this case.

My authority has received an application to install two dormer windows at a detached domestic garage and convert it into a self-contained granny annexe. The applicants state that it will be occupied by a relative and will be strictly incidental to the principal dwelling. They argue that since the proposal comprises operations in the curtilage of an existing dwellinghouse for purposes ancillary to its enjoyment, the application fee should be £135. However, as the proposal is in effect a free-standing building capable of being occupied as a dwelling, I believe that the fee should be £265. What is your view?

The judgment in Uttlesford District Council v Secretary of State for the Environment and White [1991] established that permission is not required to convert a garage in a residential curtilage to an annexe capable of independent accommodation, provided both it and the existing dwelling remain in the same planning unit. The dormer windows may not require permission if they meet the requirements of Class E, Part 1, Schedule 2 of the General Permitted Development Order 1995. So I would first question the need for express permission. Should this be required, the application fee should be £135, in accordance with category 7a, Part 2, Schedule 1 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 as amended.

A European Court of Justice ruling that the UK has failed to correctly transpose the EU environmental assessment directive into domestic legislation raises a question where significant works are carried out that do not require permission, such as the reopening of a disused canal or railway line. Where these have been undisturbed for many years and become wildlife habitats, is there any way that a planning authority can require an environmental assessment after it has decided that the works do not require permission?

The wider implications of the ruling (Planning, 12 May, p1) have yet to be fully assessed. The court rejected the Government's argument that in the case of outline planning applications, an environmental assessment may be carried out only at the initial stage of granting permission and not at the later reserved matters stage. I do not see how this judgment could require environmental assessments retrospectively for works that do not require permission and are thus beyond the control of the planning system. Does any reader have a view?

I have been told that my action group cannot object to a proposed hostel on the grounds that it would devalue property in the area. This seems unfair. Is this advice correct?

The companion guide to PPS1 outlines the general principles of the planning system. It explains that this does not exist to protect the private interests of one person against the activities of another, although private interests may coincide with the public interest. It adds that while it can be difficult to distinguish between public and private interests, this may sometimes be necessary. The guide goes on to explain that the basic question is not whether owners and occupiers of neighbouring properties would experience financial or other loss from a particular development, but whether the proposal would unacceptably affect amenities and existing uses of land and buildings that ought to be protected in the public interest. While I am aware that the devaluation of property is a material consideration in the Republic of Ireland, it has no place in the UK system.

Permission was granted on appeal for a change of use subject to a condition preventing it from commencing until a private road had been improved in accordance with details to be submitted to and approved by the planning authority. It now appears that the appellant might only have owned up to half of the width of the road. The local authority does not have any plan on file relating to the application or subsequent appeal, so it is unknown whether the road fell within the application site. Has the permission been implemented if the condition was complied with, even if the change of use has not yet occurred?

It may be possible to obtain a copy of the approved site plan from the Planning Inspectorate. Sec. 56 of the Town and Country Planning Act 1990 makes it clear that where a development consists of a change of use, it will be taken to have begun once the new use is instituted. However, the section also provides that where development comprises both a change of use and the carrying out of building operations, it will be taken to have begun on the earliest date on which any material operation "comprised in the development" begins to be carried out or the use is commenced, whichever is the sooner. If it can be proven that the road fell within the application site, it could be argued that the effect of the condition was to widen the scope of the proposal to include operational development. So any works carried out within the lifetime of the permission in accordance with approved details may be sufficient to keep it alive. However, complying with the requirements of a Grampian condition for works beyond the site may not have the same effect, if the approach taken in a decision (DCS No: 38039559) in Lincolnshire in 2001 is followed. In that case, the inspector held that off-site highway improvements could not be regarded as "comprised in the development" for the purposes of Sec. 56. I would seek counsel's opinion.

What is the legal basis for requiring an applicant for permission to edge the site in red on the submitted drawings, with any adjoining land in their ownership edged in blue?

Although long-established practice, there is no specific requirement for this in legislation. Regulation 3 of the Town and Country Planning (Applications) Regulations 1988 stipulates only that an application shall include "a plan which identifies the land to which it relates". However, paragraph 31 of Circular 31/92 advises that for fees purposes, the site area will "normally be shown edged red" on the plan accompanying the application. In addition, the ODPM's March 2005 best practice guidance on the validation of applications recommends that they must be accompanied by a location plan based on an up-to-date map with the site edged clearly with a red line showing all the land necessary to carry out the development. This could include land required for access from a public highway, visibility splays, landscaping, car parking and open areas around buildings. The guidance also says that a blue line must be drawn around any other land owned by the applicant "close to or adjoining" the application site. It is likely that the standard application form, which is expected to be introduced next year, will include these requirements.

Despite the fact that there is no condition on an outline permission restricting the size of a proposed dwelling, a condition has been imposed on the subsequent approval of reserved matters removing permitted development rights. I argue that this can only be done at the outline stage because the approval of reserved matters is not a permission. However, the local authority disagrees, citing paragraph 45 of Circular 11/95. Who is right?

Paragraph 45 advises that the only conditions that can be imposed when reserved matters are approved are conditions that directly relate to those matters. It explains that where certain aspects of the development are crucial to the decision, conditions should be imposed when outline permission is granted. For example, it may be necessary to require a building to be constructed within a specified footprint. The general rule is that conditions should only be attached at the reserved matters stage to deal with issues that could not reasonably have been foreseen at the outline stage. However, these should not derogate from the principle of the development and the permission already granted. In my experience, it is not always possible to assess the full impact of a proposed dwelling at the outline stage. Where a reserved matters application concerns a relatively large dwelling, I think it is reasonable to consider imposing a condition to take away permitted development rights for its enlargement. However, I accept that there is scope to argue the opposite point of view.

A local authority has refused to validate and register an application because it does not include a completed legal agreement that the authority says is required to satisfy its developer contributions policy. What is the legal basis for the authority's action, particularly as the applicant is willing to pay the contribution?

Sec. 62(3) of the Town and Country Planning Act 1990 provides that local authorities may require that an application must include "such particulars as they think necessary" and "such evidence in support of anything in or relating to the application as they think necessary". Except in the case of outline applications, this may be required by a direction under regulation 4 of the Town and Country Planning (Applications) Regulations 1988. Article 5(4) of the General Development Procedure Order 1995 expressly provides that where an applicant fails to comply with the requirements of either regulation 3 or "any other statutory requirement", which would include a direction made under regulation 4 requiring further information, the authority "shall as soon as practicable notify the applicant that his application is invalid". This approach is reinforced by last year's ODPM Best Practice Guidance on the Validation of Planning Applications, which withdrew advice in Circular 9/95 that an applicant's failure to respond to a direction does not invalidate the application. While the Planning and Compulsory Purchase Act 2004 inserts a new Sec. 62 into the 1990 Act with effect from 10 August 2006, this will not alter an authority's entitlement to set its own requirements provided these are consistent with the Order’s provisions. This may change once standard application forms are introduced. Meanwhile, the authority's requirements in this case appear unreasonable.

Response

Any legal agreement must be freely entered into by both sides. There are no circumstances in which an authority can "require" one or a planning obligation. It may advise that without one permission could be refused, but the applicant must still have the right to choose whether to put forward their application without one.

I agree that such a requirement is unreasonable. It undermines an applicant's right to negotiate relevant matters during the course of the application and to make changes where required. Instead, authorities should consider the use of a Grampian condition.

Further response

Can you please explain what this right is? An authority I deal with makes it clear that applications are submitted for determination and not for negotiation. I cannot remember the last time I received any request for a small amendment or an offer of negotiation to allow an application to proceed. Unacceptable applications are simply refused in eight weeks.

While there is no legal right as such, negotiation between planning officers and applicants is a critically important part of the development control process. In BT v Gloucester CC [2002], the court held that it is plainly in the public interest that proposed developments should be improved in this way. So applicants should not be required to go through the formal process of submitting a fresh application unless, following the test in Bernard Wheatcroft Ltd v SOS 1982, the changes necessary to overcome the authority's objections would deprive others of the opportunity to be consulted. The Charter Guide on Development Control issued jointly by the Government and the National Planning Forum in 1993 advised authorities that "if the proposal is unacceptable as submitted but amendments could be made to overcome its deficiencies, suggestions will be made to the applicant". This has been adopted by many authorities in their own planning service charters. The need for authorities to meet decision-making targets does not justify abandoning negotiations. Indeed, failure to respond positively to requests by applicants to negotiate may result in costs being awarded against authorities due to unreasonable behaviour, particularly in enforcement cases.

Outline permission was granted for housing solely on the basis of a site plan edged red with no details or illustrative layout. At the reserved matters stage the authority indicated that a Sec. 106 agreement would be required to secure provision for affordable housing, education facilities and off-site open space. In my view, it is now too late to require this because an obligation could only be justified if it directly relates to the approval of the reserved matters. However the authority argues that since "siting" relates to density and the number of dwellings exceeds the threshold in relevant development policies, the need for an agreement is triggered. Surely the authority could have sought more data at the outline stage and requested the agreement then?

A reserved matters application is not one for planning permission, which has already been granted subject to various conditions, and matters completely outside the scope of the original permission cannot be introduced at this stage. Planning obligations will normally be sought before permission is granted. However, I can find nothing in the Town and Country Planning Act 1990, Circular 05/2005 or this month's practice guide on obligations that rules out making an agreement when reserved matters are approved, although such an agreement would need to satisfy the policy tests set out at Annex B of the circular. Since these are largely based on the same criteria that apply to conditions, Circular 11/95 guidance on the imposition of these may be helpful by analogy. This explains that only conditions directly relating to these matters may be applied when reserved matters are approved. Although the term "siting" is not defined in planning legislation, reserved matters no longer include this term under the new provisions that took effect yesterday (Planning, 4 August, p16). Instead, reserved matters now include "layout" and "scale". In a decision from Suffolk in 2002 (DCS No: 54941042), an inspector relied on the judgment in R v Secretary of State for the Environment ex Parte Chichester District Council [1992] to support his view that density was a reserved matter because it related to siting and design. But in a case from Buckinghamshire in 1998 (DCS No: 30570826), it was held that "siting" did not cover the provision of public open space. The inspector averred that since this was a crucial matter it should have been subject to a condition. In your case, I think that an obligation would only be justified if it is required to refine the general terms of any agreement made when the permission was granted or if it is a requirement of a Grampian condition imposed at that stage.

In response to an outline application, my authority has issued a direction under Article 13 of the General Development Procedure (Scotland) Order 1992 requiring details of the siting, design and materials of a proposed housing development on a sensitive site in a conservation area to be submitted. Is the applicant's failure to do this tantamount to a deemed refusal?

Article 12(4) of the Order provides that where, after acknowledging receipt of an application, the planning authority forms the opinion that the application may be invalid by reason of failure to comply with any requirements of Articles 3 to 7 "or with any other statutory requirements", it should "notify the applicant that the application is invalid". In my view, since a direction made under Article 13 to submit further information in Order to enable the authority to deal with the application is a statutory requirement, an applicant's failure to comply with this would invalidate the application.

A proposed flood alleviation scheme comprising walls, embankments and other works would allow adjoining areas to flood naturally for a few days during such an event. Should the application site boundary include both the physical works themselves and the other areas that will flood? The latter could be said to have been legitimised through formal inclusion in the scheme, even though a material change of use might not arise as a result of temporary inundation. Alternatively, should the application be restricted to the physical works?

It is difficult to see the justification for including areas of land that might be temporarily flooded within an application site, since this would not constitute development for which permission is required. However, where land would be surrounded by earthworks or other engineering operations in order to create a flood storage area, it seems reasonable that the whole of the area should be included in the application. General guidance on development and flood risk is given in PPG25.

An approved application for a dwelling included drawings that were not professionally produced and had no dimensions or boundary reference points. An enforcement officer says that drawings do not need to be dimensioned and where necessary distances may be scaled off the plans. How can residents be sure that the development complies with a condition that requires it be carried out in strict conformity with the details shown on the drawings? What is an acceptable margin of error when scaling off plans?

Currently there are no national requirements for application drawings, although this will change once standard forms are introduced. All that is required is that an application includes a site plan sufficient to identify the land to which it relates and "such other plans and drawings as necessary to describe the development". In practice, if drawings are to a recognised scale and show clearly the relationship of the proposed development to site boundaries and other physical features, which is a normal requirement, there is no need for dimensions to be stated. But without such reference points, site plans are meaningless. Guidance on the drawings that should generally be required for applications is set out in the Government’s best practice guidance on the validation of planning applications. Problems arising from errors in plans are discussed in 6.32. There is no rule of thumb on the margin of error that might be tolerated.

An authority recently notified me that it "declines to determine" my application despite having registered it and accepted the fee because a similar undecided application is currently before the Secretary of State. That application, which is the subject of an appeal, is for outline permission for a dwelling on part of a plot used for commercial purposes. The authority objects to the retention of this lawful commercial use on the remainder of the site. However, my application is significantly different because it covers the entire site, is for full permission and would extinguish the commercial use. Do you agree? Am I entitled to a refund of the application fee?

Sec. 70B of the Town and Country Planning Act 1990 allows authorities to decline to determine so-called overlapping applications when a "similar" application is:

•    Still under consideration by the authority and the relevant decision period has not expired.

•    In the case of an application that is the subject of an appeal or call-in, is still before the Secretary of State and no decision has been issued.

•    Has been decided by the authority or the determination period has expired without it being decided and the period within which an appeal can be made to the Secretary of State has not expired.

The Act says an application is similar to another if, and only if, the authority thinks that the development and the land to which the applications relate are "the same or substantially the same". Authorities therefore have discretion in such matters. While advice in Circular 08/2005 relates mainly to the new provisions under Sec. 70A, which are intended to prevent repeat applications designed to reduce opposition to undesirable developments, much of it seems to apply also to Sec. 70B. The thrust is that even where an authority considers that an application is similar, it is not automatically obliged to decline to determine it. Indeed, the circular goes on to say that authorities should be mindful of the intention behind the new power, which should not be used to prevent submission of a similar application that has been altered to address objections to the previous application. This appears to be the intention behind your application. Your authority appears to be acting unreasonably. However, there is no right of appeal against this type of notification or any provision for the refund of the application fee. This is because the authority is not required to notify the applicant immediately of its decision to decline to determine the application and may do so following registration of the application and its consideration.

A takeaway owner applied to my authority to remove a planning condition to enable the use to operate during the same hours allowed under its premises licence. The application was refused on the grounds of noise and nuisance. The applicant argued that since the licensing authority was the same as the planning authority and no problems were highlighted during consultation with the police and environmental health officers on the licence application, the planning application should have been approved. Is planning law superior to licensing law in such circumstances?

Rather than planning law being superior to licensing law, the two sets of powers are complementary. The courts have held that matters raised by the licensing regime and regulation of development under other legislative codes are material considerations to be taken into account when making planning decisions. Nevertheless, planning controls may apply more stringent conditions if necessary in the interests of land use or the environmental impact of a development on the immediate or wider community. In a case from London earlier this year (DCS No: 100043430), an inspector refused to allow a pub to open after midnight because it would harm local residents' amenity, even though the licensing authority had granted permission for the pub to remain open until 3.30am each morning. The inspector held that the planning system requires a broader approach to assessing impact on local amenity than is provided for under the Licensing Act 2003. A similar stance was taken in a decision from Hampshire last year (DCS No: 100038087) concerning a late-night entertainment venue. The inspector determined that controls under the 2003 Act on noise levels do not remove the council's duty to ensure that land uses are compatible. He also noted PPS6 advice that local planning authorities should manage the evening and night-time economy.

My authority has several applications between two and four years old that have not been determined, mainly because the applicants have not submitted requested information or amendments. Since these applications are no longer being pursued by the applicants and the authority is loathe to determine them because of the adverse effect that it would have on our performance figures, are there any provisions whereby we could either "withdraw" them or close the file?

Article 25(11)(a) of the General Development Procedure Order 1995 enables a planning authority to treat an application as being "finally disposed of" where it has either been decided or the appropriate time period allowed under Article 20(2) of the Order for determining the application has expired without the authority giving notice of its decision and a further period of six months has elapsed without any appeal being lodged. Although there is no requirement to do so, it would be unreasonable in my view for the authority to do this without first warning the applicant in writing and setting a final deadline of, for example, 21 days from the letter for the receipt of outstanding material. The alternative of refusing the application would not just impact on the authority's performance figures, it would also reinstate the applicant's right of appeal.

Response

Would such action constitute a "deemed refusal" against which there is a right of appeal?

While this procedure has been used for at least 20 years, I am not aware that it has been tested. Although not mentioned in Sec. 78 of the Town and Country Planning Act 1990, which sets out an applicant's right of appeal, I think this possibility is most unlikely.

I believe that you, and many planning authorities, are misconstruing Article 25(11)(a) in the wider context, including situations where an application has not been determined and this is not caused by the applicant's failure to supply further information requested. Article 25 addresses the requirement for specified authorities to keep a planning register and what it must contain. It does not authorise the "writing off" and negation of a valid application. Article 25(11)(a) refers to Article 25(3), which specifies what records must be included in the planning register. The register need not contain a record of any application where the statutory determination period plus the appeal period has expired. But that does not seem to me to provide a general authority to go a step further and simply negate a valid application on the basis that the authority has failed to determine it and the appeal period has expired. If your interpretation is correct, it would seem a shoddy way to run a planning service. It would be analogous to being charged upfront for repairs to your car and being told by the garage eight months later that they have not only failed to do the repairs you have paid for but have dumped your car as well.

The planning register must contain a record of any application where the statutory determination period referred to under Article 20 of the Order plus the appeal period has expired. However, in accordance with Article 25(4), such records are held in Part 2 of the register. People conducting searches will therefore be able to establish undetermined applications. But it is curious that the law requires that these should be recorded in Part 2 rather than in Part 1, as one might expect. As far as I can see, there is nothing to prevent an authority from determining an "old" application. It is only in the recent climate of performance targets that lateral thinkers have sought legal means of removing "old" applications from the books. In some cases the applicant will not be bothered, but it would certainly represent poor service if an authority were to take such action unilaterally and without first notifying the applicant. There is a gap between the law and practice and perhaps the DCLG should be asked to advise. After all, paragraph 99 of Circular 9/95 explains that "Part 1 of the register records applications pending and Part 2 applications which have been decided".

The ability to obtain retrospective permission for development seems to be being used to support planning cheats who fail to comply with conditions. Third parties have few rights in the planning process and their views are rendered meaningless when conditions designed to mitigate the effect of a development on neighbouring properties are not adhered to. Is there any guidance on the circumstances in which retrospective permission may be used? Since consultation with third parties is a legal requirement, surely adjoining residents have a right to expect that a development is built in accordance with any planning conditions and the approved plans.

PPG18 and Circular 10/97 set out Government policy advice on planning enforcement. The former recognises that it is not an offence to carry out development without first obtaining any permission required. Sec. 73A(2)(c) of the Town and Country Planning Act 1990 specifically provides that permission may be granted for a development carried out before the date of the application, without complying with some condition set out in a previous permission. However, where this has had some materially harmful planning effect, local authorities may refuse permission and take enforcement action to remedy the breach of control. Indeed, there have been numerous cases where such action has required buildings that do not comply with the terms of a permission to be taken down. The system is not weighted in favour of planning cheats.

Paragraph 51 of DCLG Circular 01/2006 indicates that one of the new reserved matters is "appearance". It explains that this is "the aspects of a building or place which determine the visual impression it makes, excluding the external built form of the development". But in Article 1(2) of the General Development Procedure Order (GDPO) 1995, the term "appearance" is actually defined as meaning the aspects of a building or place within the development that determine the visual impression the building or place makes, "including the external built form of the development, its architecture, materials, decoration, lighting, colour and texture". Moreover, one local authority states on its website that the definition is "the aspects of a building or place which determine the visual impression it makes, excluding the internal built form of the development", which adds an interesting dimension. Which definition is correct?

I am not aware that the DCLG has issued any statement to correct the advice in the circular. As you point out, this clearly contradicts the definition given in the Order. But while the Order has statutory force, the circular has been issued for guidance only. The definition in the Order, which obviously makes sense, must therefore prevail. Although the definition apparently given by the planning authority does not follow the same wording as the statutory definition, its effect is the same.

Can an authority invalidate an application for reserved matters on the basis that it has not been accompanied by a design and access statement where the outline permission was granted before 10 August?

Article 4C of the GDPO provides that design and access statements are required only for applications for planning permission unless specifically excluded under the article. Since an application for the approval of reserved matters is not one for permission, I interpret this to mean that such applications do not need to be accompanied by a design and access statement. Paragraph 68 of DCLG Circular 01/2006 says that statements are required for applications for outline and full permission, without mention of applications for the approval of reserved matters. It also explains that statements "will form a link between the outline permission and the consideration of reserved matters", from which I infer that they are unnecessary at the detailed stage. Neither does the Commission for Architecture and the Built Environment best practice guide refer to the need for statements at this stage. Instead, the guide says: "Unless a new statement is produced, the original one accompanying the outline application will be very important when reserved matters are drawn up and agreed. When reserved matters are approved, it may be appropriate to place further conditions on the permission that relate to detailed aspects of the statement submitted with the original outline application". It adds that at outline stage, statements will be an important way of making sure that reserved matters are consistent with what the developers said they were going to do when they applied for planning permission. So I think it is unreasonable for an authority to refuse to validate an application for the approval of reserved matters on the grounds of conflict with the development order. The validation of such applications is expressly excluded from the Government’s July 2006 consultation paper on minimum requirements for validating applications for permission.

I recently submitted an application for a granny annexe in the curtilage of a bungalow. It would replace some outbuildings that are less than 4m from the dwelling and accommodate the occupier’s elderly mother. The authority has refused to accept the application as one for householder development because the building would not be attached to the bungalow. It has declined to register the application and insists that permission is sought for a new dwelling. However, if I do this I am concerned that the application would be refused on policy grounds. Has an authority the right to try to make applicants apply for something they do not want?

Despite its position close to the bungalow and within its curtilage, if the annexe would not be connected to the existing dwelling and would be designed and fitted out as a self-contained living unit, I think the authority is entitled to treat the proposal as a new dwelling rather than a house extension. However, if the purpose of the proposal is explained in the description of development on the application form and in the accompanying design and access statement, there is no reason why the authority should not assess the application as being for a granny annexe. This is particularly so if it is made clear that a condition tying occupation of the annexe to the existing bungalow would be acceptable or a unilateral undertaking is offered that would have the same effect and it is not proposed to provide the new dwelling with its own curtilage and vehicular access.

Proposed floor plans were previously submitted for approval as reserved matters "design". However, none of the new reserved matters appears to cover the internal layout of a building. Is this correct?

The former reserved matter of design is not defined in planning legislation or clarified in policy guidance. However, it is evident that this was not intended to relate to either the "siting" or "external appearance" of a development because these were separate matters. So it could be inferred to have included internal arrangements. Since 10 August 2006, "design" is no longer a reserved matter. While the prefix "external" has been omitted from "appearance", which continues to be a reserved matter, Article 1 of the General Development Procedure Order 1995 has been amended to define this as "the aspects of a building or place within the development which determine the visual impression the building or place makes, including the external built form of the development, its architecture, materials, decoration, lighting, colour and texture". Irrespective of this, the internal layout of a building is clearly a material planning consideration. The submission of floor plans with applications for full permission or the approval of reserved matters is long established and it is inconceivable that the purpose or effects of a proposed development could be assessed properly without them.

Design and access statements are now required to accompany certain applications. However, while there is advice on what these statements should contain, there does not appear to be any legal requirement on the standard of the submission to enable the application to be validated. Do you agree that a planning authority could refuse permission on the basis of an inadequate design and access statement?

By virtue of new Sec. 327A of the Town and Country Planning Act 1990, planning authorities are prevented from accepting an application that fails to comply with any statutory requirement, such as any need to submit a design and access statement. However, recent advice from the Planning Advisory Service is that the submission of an unconvincing statement is not a reason for refusing to validate an application. The guidance makes it clear that the adequacy of a statement should not be judged too harshly when it comes to validating applications. The standard required to meet the test for validation should therefore be relatively undemanding. Of course, where an authority refuses to validate an application on the grounds of an inadequate statement, it must be borne in mind that an applicant has the right of appeal. It is unlikely that an authority would be justified in refusing permission on the grounds of an inadequate statement. As the best practice guide published by the Commission for Architecture and the Built Environment points out, a design and access statement does not form part of a planning application but merely accompanies it.

Response

You explained that where an authority refuses to register an application on the grounds that a design and access statement is inadequate, the applicant has a right of appeal. However, I understand that the Planning Inspectorate will not consider an appeal against an invalid application in any circumstances. The PAS’s advice that an unconvincing statement is not a reason for refusing to validate an application does not alter the legal position. Other than a judicial challenge, on what basis can an applicant challenge the authority? If there is none, then in practice authorities will be able to set the standard extremely high. Some are doing so with the result that the majority of the applications they receive are being rejected for this reason.

The right of appeal is against the failure of the authority to determine the application. However, this may only be exercised following the expiry of eight weeks from the date that the application was submitted. As Circular 31/92 points out in the context of disputes over fees, the Inspectorate must first consider whether the application is valid and the Secretary of State has jurisdiction in deciding whether to accept an appeal. Such an assessment would also include consideration of whether any design and access statement meets the statutory requirements. The right of appeal is mentioned in the PAS guidance note. Authorities should bear in mind that it is not the statement that requires approval but the proposed development that it seeks to explain and justify.

Further response

An authority is prevented from entertaining an application that does not meet the statutory requirement, where it applies, to submit a statement. New Article 4C of the General Development Procedure Order 1995 specifies the information that statements should contain. A statement that does not include all the information specified in Article 4C should not be entertained. Failure to assess whether the requirements are met could result in a subsequent challenge from an aggrieved third Party. PM's suggestion that the standard required to meet the test for validation "should be relatively undemanding" needs to be viewed in this context. This is before the authority can consider whether or not the information provided is convincing. It seems quite anomalous that an authority would be debarred from validating and considering an application when a developer could circumnavigate the planning system by appealing directly to the Planning Inspectorate, which would presumably have the ability to proceed to determine the case. Sec. 79(6) of the Town and Country Planning Act 1990 would appear to enable the Secretary of State to decline to determine an appeal if she decides that, having regard to the provisions of the development Order among other things, permission could not have been granted by the planning authority. Is it reasonable to expect that the Secretary of State would Act accordingly? Regulation 4 of the Town and Country Planning (Applications) Regulations 1988 provides that an authority may direct an applicant in writing to supply any further information necessary to enable it to determine the application. Should an authority invoke this regulation in relation to a deficient statement and the applicant fails to comply, this would presumably still allow the applicant to appeal.

I agree that design and access statements must meet the minimum requirements specified in the Order. My advice on the test for validation merely repeats the PAS guidance. The submission of an unconvincing statement or one that, having met the statutory minimum requirements, the authority does not like is not a ground for refusing to validate. Where an authority's demands for validating an application are considered unreasonable, it is right that an aggrieved applicant should have the right of appeal to the Secretary of State. There are cases where this has happened within the context of disputes over fees

My company is building a housing scheme that has reserved matters approval. By mistake, the wrong windows were installed in one of the house types, contrary to a condition that requires the development to be carried out in accordance with specified plans. The authority has refused to register an application under Sec. 73 of the Town and Country Planning Act 1990 to vary the condition to refer to new plans showing a revised house type. It argues that this is not an appropriate mechanism to amend the approved plans and that it only applies to permissions, not the approval of reserved matters. The authority also requires a design and access statement. What is your view? JM.

Sec. 73 provides that applications may be made for "planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted". Given that the application seeks to vary a condition granted on a reserved matters approval and not a permission, the authority's stance is arguably correct. The appropriate response would be to submit a revised application for the approval of reserved matters or for full permission. But while a Sec. 73 application may require a design and access statement, DCLG Circular 01/2006 and best practice guidance suggest that this is not required for reserved matters applications.

Could you advise on the correct planning application fee to be submitted in the following case? An application for nine dwellings was submitted with a fee calculated as 9 x £265=£2385, but was withdrawn to avoid it being refused, primarily on the basis of underdevelopment. A second detailed application was submitted for thirteen dwellings. The applicant offered to pay a top up fee for the additional units i.e a further 4x£265=£1060. This was not acceptable to the planning authority which argued that thirteen dwellings could not be of the same character and description as nine dwellings, and that the correct fee for the second application was 13 x £265=£3445. The applicants dispute the calculation and say they are either entitled to pay the top up fee, or should benefit from the one free go option allowed in certain circumstances by the Fees Regulations. PW.

There is no provision in the Fees Regulations for the transfer of fees from one application to another, or for ‘topping up’. Nor is there any mechanism for the return of the fee paid for a validly submitted, but later withdrawn, application, as noted in Circular 31/92 at paragraph 26. Regulation 8 of the Fees Regulations states that a free go is only allowable where the local planning authority is satisfied that the character or description of the development is essentially the same as the earlier application. Although this wording allows a small amount of discretion, in the case you describe the council’s view that an increase from nine to thirteen dwellings is a significant alteration seems entirely reasonable, particularly as there would need to be fresh consideration of fundamentals such as density and layout. GH

Does the provision to renew a planning application with only the submission of a site plan and letter still exist, and in these circumstances is the application fee payable on the basis of the development proposed or on the basis of a variation of a condition at the £135 fee? BE.

Renewal of permissions before they have lapsed has been possible using the powers set out in regulation 3(3) of The Town and Country Planning (Applications) Regulations 1988.  As discussed previously in these columns this provision does not seem to have been revoked. It states that such applications may be made using a "streamlined" procedure whereby a letter setting out enough information to identify the permission which it is desired to renew is sufficient. However, some authorities have exercised their right under regulation 4 to require that further information be submitted, and many have included a facility for renewing a temporary permission in their own application forms. There is no specific provision for renewal of temporary planning permissions in the range of standard planning application forms (1APP) which become mandatory in April 2008, although it is possible to utilise the format designed for the removal or changing of conditions. The fee is normally taken at a £135 flat rate, although if the temporary permission has lapsed a full fee may be payable. GH.

I am looking for advice in Circulars or Regulations as to what the content and wording of the description of development in a planning application should be, and what rights a local authority has to alter this wording. GB.

I cannot find any prescriptive material in law or ministerial advice as to the content of the description of development section of a planning application form. As will be well known to development control officers this section is often filled in too briefly or imprecisely. In other cases the description given may attempt to put a gloss on certain aspects of the development proposed. It is well established that when it comes to a dispute about what development has actually been requested or has been approved, it is the combination of the evidence of the submitted plans, information given in other parts of the application form and other submitted material, that will be taken into account. While a local authority should not unilaterally alter an applicant’s description, the Court of Session case Burgon v Highland Council [2007] indicated that this could be permissible where it was found that the amendment did not alter its substance, and objectors would not be prejudiced. Clearly in any other situation it is imperative for a local authority to seek the agreement of the applicant to any revised wording. GH.

Do any readers have experience of receiving and reporting to planning committee, views from third parties that could be deemed slanderous or offensive? I am aware of the provisions of the Race Relations Act but in a case currently before my council an objector made reference to alleged likely anti-social behaviour from residents of a particular house tenure. SS.

As this question involves an area of law and practice outside the town planning field I do not have a ready answer. However, as requested, does any reader have an input? GH.

Response

A number of years ago we received a similar letter as an objection to a planning application. Because of the nature of the comments made we wrote to the individual concerning returning his letter and advising him that he should limit his comments to the planning matters, and that we could not put his letter forward as we could technically be accused of aiding an abetting the slanderous or offensive comments. CS.

Further Response

I have recently represented an appellant in an enforcement appeal where a third party submitted highly offensive representations to the Planning Inspectorate. He was asked by the Inspectorate, quite rightly, to submit a modified letter removing the offensive contents. I am pleased to say that my clients appeal was allowed. Perhaps there is a message for those who are like minded? JC.

I am a member of a residents association in West London. As part of our activities we monitor and comment on current applications affecting our local area. The borough has not yet made available full details of its planning applications on line so we regularly need to visit the council’s offices to view the information.  Apart from the cumbersome process of joining a queue with those paying parking fines and applying for skip permits we often find that in relation to applications for approval of details, information is rarely available.  We are told, often abruptly, to contact the case officer for details. Hardly an inviting way to participate in the planning process! Should this information not be available as part of the statutory process through the councils planning reception service? I wonder if other readers have experienced this problem? DW.

Your question betrays the fact, that despite the efforts that have been made by government in recent years to ensure that planning information is made freely available to the public, there are still some authorities that do not altogether deliver  In your Association’s case, despite not being a statutory consultee, it clearly needs the earliest possible sight of plans and associated documents in order that any observations it cares to make on planning applications are properly informed and timely. I am aware that at least some planning authorities quickly post details on their web sites of all valid applications received, in many cases including the often all-important submitted plans. In common with the questioner I would be interested to hear of other examples of current practice, both good or bad. GH

I think the answer may lie in the government’s Good Practice Guide Making the Planning System Accessible to Everyone published in September 2004. This is available on the DCLG website. DW might to well to ask his London Borough why they are not following this guidance. RS

Are pre-application inquiries to planning departments treated as being confidential, either as a matter of course, or if one requests that they be so? DC.

This topic was covered in a joint report published by the Planning Advisory Service last year*. Here it was stated "There is a possibility that, under the Freedom of Information Act, the authority will be asked to provide information regarding enquiries for pre-application advice and copies of any advice provided or correspondence entered into. This information may only be withheld if its disclosure could prejudice commercial interests, inhibit the free and frank provision of advice or exchange of views during the planning process, or could prejudice the effective conduct of public affairs. Prospective developers would be well advised to provide a covering letter that sets out the reasons why, and for how long, any information relating to the case needs to remain confidential. It will be for the local authority to decide whether information can be treated as exempt from disclosure and all sides need to recognise that the thrust of the legislation is to make information accessible unless there is a pressing reason why not. Each case needs to be assessed on its merits. The passage of time may remove the need for exemption as information becomes less sensitive. Generally, notes and correspondence relating to application discussions will not be treated as confidential, once a planning application has been submitted and the case is in the public domain." GH

*Constructive Talk – investing in pre-application discussions is available for download at http://www.pas.gov.uk/pas/aio/39020

I have recently submitted an outline planning application for a two-storey side extension to a single family dwelling house. The reason I submitted in outline was to obtain an ‘in principle’ permission for the two-storey element as the property is on a prominent corner location. I submitted a block plan showing the position of the extension and an indication that height would be consistent with the eaves of the existing property. The planning authority say that it cannot accept an outline application in principle as that there is nothing in law that allows it to do so. Is this correct? SD.

It seems that the problem here may be just one of labelling. You seem to have submitted all the information necessary to satisfy the requirements for a conventional outline application as advised in Circular 1/2006, save perhaps for the submission of  a design and access statement. Of course this would not stop the local authority requiring more information if it so wishes, as noted in the same Circular.

There is no such thing in planning law as an application in principle, although five years ago the government dallied with the idea of introducing an application for a "statement of development principles". This was intended to be a certificated statement of whether a local planning authority agreed with the principle of all or part of a proposed development. It would not have granted permission but would have been taken into account by an authority determining a subsequent application for planning permission. GH.

My Authority has recently been asked, by letter with an accompanying fee of £135, to renew an unimplemented planning application before its expiry. In the light of the Planning and Compulsory Purchase Act 2004 removing the right to extend the time period of an application under section 73 of the Town and Country Planning Act 1990, can they still apply in this manner? The fees regulations specify a flat rate – now £135 – for renewal and it is on that basis that the application is being made. PC.

You rightly state that a section 73 application can no longer be made to extend the life of a permission by varying the condition that sets the time limit for commencement of development.  Advice was given in these columns last November, was that it still appeared to be possible to renew non-lapsed permissions using the Town and Country Planning (Applications) Regulations 1988.  However the recent coming into force of the Town and Country Planning (General Development Procedure) (Amendment) (England) Order 2008 means that this ‘streamlined’ form of application is no longer possible. The accompanying Circular 2/2008 Standard Application Form and Validation states at paragraph 13 that "The provisions in Regulation 3 of the Town and Country Planning (Applications) Regulations 1988 that set out the requirements associated with the submission of planning applications have been replaced by the provisions in Article 4E of the GDPO. This means that applicants seeking to renew a planning permission will need to submit a fresh application for planning permission on the Standard Application Form."  Accordingly, if an application for renewal were made today the appropriate fee would not be £135, but in line with the amendments to the Fees Regulations which came into force on April 6 2008. GE/GH.

A planning application was refused and a revised one was submitted within twelve months, so a further fee did not have to be paid. This second application was refused. A third application was also refused and the applicant now wants to claim a "free go" on his fourth application. Paragraph 2(f) of regulation 8 of the Fees for Applications and Deemed Applications Regulations 1989 (as amended) states that one condition of a "free go" is, "no application made on or by or on behalf of the same applicant in relation to the whole or part of any site has already been exempted (from a fee) by this regulation". Our authority is unsure whether to exempt this fourth application from fees. Can you advise? RA.

Whilst the wording of the regulations you quote is somewhat ambiguously written, paragraph 86 of circular 04/2008 clearly states, "Where any applicant needs to submit a third or subsequent revised application, the full fee is payable". Thus, the government view is an applicant can only have one "free go" for any site, not more than one. JH.

What is the application fee for creating a granny annexe or other ancillary dwelling to a main house by either a new-build or a change of use of an existing outbuilding? JS.

The Fees for Applications and Deemed Applications Regulations 1989 (as amended) define a dwelling house as "a building or part of a building which is used as a single private dwelling and for no other purpose". Neither the regulations nor circular 04/08 have specific provisions relating to granny annexes, etc. Although an annexe may be subsidiary in use to another dwelling, it would still conform to the definition of a dwelling house in the regulations. Thus I consider a new-build annexe would fall into category 1 of the Fee Regulations, "the erection of dwelling houses", at £335 per dwelling. Similarly a change of use to an annexe would fall within category 10, the change of use of a building to use as one or more separate dwellings, i.e. £335 for an annexe comprising a single dwelling. JH.

Response

JS replies that she has subsequently come across the judgment in Uttlesford District Council v Secretary of State for the Environment and White [1991] established that permission was not required to convert a garage in a residential curtilage to an annexe capable of being independent accommodation, provided both it and the existing dwelling remain in the same planning unit. Therefore, if permission be required, the application fee should be £150 in accordance with the recent revision to the Regulations.

Further Response

My reply was based on the assumption that the granny annexe referred to by JS was a self-contained unit having all the facilities for day to day living. As such I took the view was it was de facto a ‘dwellinghouse’ as defined in the 1989 Fees Regulations. Of course, it is well established in case law such as Uttlesford, that an ostensibly self-contained annexe, whether new-build or created within existing curtilage buildings, may by usage be deemed ancillary to the main dwelling. Indeed, in such a case the annexe could be permitted development or not constitute a material change of use. However, if planning permission is required where a granny annexe is being created within an existing dwelling curtilage and the applicant states that the accommodation is to be ancillary, then it would not be justified in charging the full fee of £335. In such circumstances it would, of course, be sensible for the planning authority to "reinforce" this ancillary status by a suitable condition if permission is granted. JH.

We have a joint householder planning application for a two-storey front extension crossing two semi-detached properties in different ownerships. Both landowners are referred to as applicant and both have signed Certificate A. Our normal approach with joint applications would be for one applicant to take the lead to sign Certificate B and serve notice on the adjoining landowner. Notwithstanding, is there any impediment to us dealing with the application in the manner submitted? EE.

Technically, both parties should serve Certificate B on each other but in the circumstances where two householders are the joint applicants, and both have signed Certificate A, I cannot see that there could be any prejudice to any party in so doing and thus no possibility of any future legal challenge. GH.

Since the introduction of the new set of reserved matters in August 2006 I thought it was no longer possible to seek approval to ‘means of access’ when applying for outline permission as the amended General Development Procedure Order 1995 (GDPO) definition of the reserved matter access is much wider than previously implied. I have, however, come across recent examples of where local planning authorities have registered outline applications for large scale residential developments which include details of means of access as part of the application. What is your understanding on this point? GB.

Circular 01/2006 Guidance on Changes to the Development Control System explains the changes to the outline planning permission process and the requirement for design and access statements, both of which came into force on 10 August 2006. It states that reserved matters relating to access should now cover the positioning and treatment of circulation routes and how these fit into the surrounding access framework. However, the Circular also states that at a minimum information to be submitted with outline applications should include an indicative layout and indicative access points.  This information together with that required in any accompanying Design and Access Statement will already provide a local authority with a considerable amount of information about the applicant’s intentions regarding access, but if a local authority needs more detail it has the power under Article 3(2) of the GDPO to require it.  In the situation that you pose where an applicant submits more than the minimum access information suggested in the Circular I can see no  impediment to that being accepted as part of a valid outline application. Needless to say, any outline permission granted should make it clear whether the detailed access information submitted is approved or not. GH.

When it comes to the description of development can the applicant insist that his or her wording is that which is used throughout the process? What would be the situation if the description includes matters that might not be development at all - agriculture for instance. AL.

I answered a similar query (Planning, 23 November 2007) where it was stated that there seemed to be no advice in Circulars or Regulations as to what the content and wording of the description of development in a planning application should be, and what rights a local authority has to alter this wording. Following the court case quoted in my reply it would seem that it could be permissible for a local authority to unilaterally alter a development description if this did not alter its substance and objectors would not be prejudiced. As to the other part of your question I would have thought it extremely unlikely that, were this situation to arise, any injustice or a question of validity would occur if a planning decision embraced permission for an element that was patently not development. The position would, of course, be different if an authority tried to impose conditional control over any severable element or aspect of a permitted scheme that did not in fact require express permission. GH.

If an application is not validated as further information is required, is the planning authority within its rights to retain the fee? SH.

Normally it would be in the applicant’s interests to supply the further information required to validate the application and minimise delay. It would be unreasonable for the council to be expected to refund payment for what would normally be only a short period. If there is an impasse whether the further information is actually required, the only way to resolve this is to appeal against non-determination after the appropriate period has elapsed and see if the Inspectorate will accept the appeal. If an application has not been registered as more information is required and the applicant decides for whatever reason not to proceed with it, they should notify the council this is their intention. As a valid application has not been made, the applicant should then be entitled to a refund within a reasonable period. JH.

My authority has received an application for a substantial storage building. It is clearly the intention to provide internal mezzanine floors as the drawings show indicative floors, stairwells are present on the plans and transport assessment has been submitted referring to the total floorspace.  However, the applicant has only quoted the ground floor area in his application and paid a fee based on that area, arguing that the mezzanines are to be introduced only after completion as demountable structures. We are inclined to the view that the mezzanine floors are clearly part of the overall development. I would be interested in any views on the matter. MP.

From May 2006 an amendment to planning law has meant that mezzanines inserted into retail buildings after completion require planning permission. However, in terms of other uses they are still treated as internal works which are not development.  From the point of view of the correct fee to be paid it is vital to establish whether the application your authority is dealing with relates to the building with or without mezzanine floors. If your applicant says he is applying for permission for a building without mezzanines then that should be conclusive, despite other evidence that these features are to be provided at some point. Your authority should, of course, make sure that any decision notice makes it absolutely clear that the permission does not include the provision of mezzanine floors. Whether, it should go further and impose a condition requiring further permission to be sought if mezzanines are later inserted very much depends on whether there is a planning justification for such a restriction. GH.

In the past you have considered the case of a flat development where the threshold for triggering an affordable housing requirement could be avoided by applying for a lower number of units, and at a later date applying to subdivide several units. If such an approach is to be successful does the original development have to be constructed and the residential use implemented, or is it sufficient just for the development to be completed? DB.

My earlier reply in Planning, 21 September 2007 p29 pointed to appeal cases where housing schemes just below the affordable housing threshold but with potential for more units, have been rejected as underdevelopment. The situation where permission has already been given for a newbuild or conversion scheme just under threshold, and a developer comes along later with plans for additional units, can possibly be dealt with by specific planning policies or Supplementary Planning Guidance, designed to circumvent this form of threshold manipulation. Without any such policy back-up it may be difficult for a local authority to justify a ground of refusal of a subsequent application on the basis that no affordable housing had been provided for the cumulative on-site total. I do not think it would make much difference in policy terms whether the initial development was occupied or not. GH.

We were recently told by the relevant local planning authority that we had to notify the landowners of a proposed site 21 days before we submitted the application to the LPA. We filled in the Certificate B and Notice and sent the latter to the relevant landowner, 21 days prior to us submitting the application. Therefore, if landowners want to comment on the application this would not be possible. They would turn up to the council offices and have nothing to look at, as the application documents would not yet have been submitted. The 21 day consultation period would be over, and they would not have had a chance to respond. HL.

This problem would seem to have come about from a misreading of the relative law. The format for Certificate B contained in the General Development Procedure Order 1995 requires an applicant to declare that he or she has given the requisite notice to anyone who, on the day 21 days before the date of an accompanying application, was the owner of any part of the land to which the application relates. GH.

My authority is having problems with changes to the General Development Procedure Order 1995 in terms of outline applications. A developer has applied for a housing scheme with all matters reserved but, as now required, indicates scale parameters showing that the development would include three-storey structures. The principle of the development is acceptable, but three-storey properties would be out of keeping with the surroundings. By approving this application, would we be agreeing to three-storey properties? Should we go back to the developers and ask them to agree two-storey development n the indicative scale parameters before approving it? CT.

DCLG Circular 01/06 does not give any guidance on this issue, but it would seem prudent to seek amendment of the application so that there is no doubt about the scale of development the council considers appropriate. If the applicant is unwilling to amend the scheme, it would obviously seem sensible to refuse it. While in theory it might be possible to impose a condition restricting the development to two storeys, that could be considered too big a change to be acceptable through this route. JH.

I have been reading Circular 02/08 on the new standard application form and validation procedures in an attempt to ascertain the correct documentation required for a valid planning application. I understand that there is a right of appeal against non-validation through the process set out in paragraph 32. If the inspector agrees with the applicant that sufficient information has been provided, he will determine the appeal. If not, the applicant will have to provide the extra information. I am dealing with an authority that has published a list of local requirements on its website, but I am not aware that it undertook any consultation beforehand as recommended by the circular. Have I misunderstood this issue? Does the lack of consultation on the local list make a difference when an appeal is lodged following a dispute about the validity of an application? CW.

Under the new procedures relating to adoption of the standard application form, councils are encouraged to draw up local lists of information required to validate applications. These would augment the "national list" - the mandatory national requirements set down in the General Development Procedure Order 1995 incorporating its 2008 amendment, which is also printed in annex A of Circular 02/08.

Your understanding that you can lodge an appeal if there is a dispute about whether sufficient information is supplied to process an application is correct. Regarding the need for consultation on local lists, this actually comes from the DCLG publication The Validation of Planning Applications, not Circular 02/08. This "encourages" such consultation, so it is not strictly a requirement. If you think consultation has not taken place, check this with the council. If this is confirmed, it would be worthwhile drawing it to the inspector’s attention in an appeal as he or she might give some weight to this factor. JH.

I have submitted details to a planning authority to discharge a condition on a full planning permission and have received the response there is no charge this time, but in future the council will require a fee to confirm the details satisfactorily discharge the condition. This seems to be a misinterpretation of the regulations – do you agree? DB.

This new provision seems to be causing problems as this is not the only Forum question to be received on this issue. Since 1 April such submissions have been subject to a charge, £25 for householder developments and £85 for all others; so the charge is not a misinterpretation of the legislation. The procedures are explained in paragraphs 123 to 131 of circular 04/2008. Surprisingly, the circular suggests councils might apply this provision flexibly, but no reason for this is given. I hope this provision does not result in planning authorities imposing extra conditions requiring subsequent detail approvals to earn fee income. Conversely, developers may attempt to minimise fees by either submitting more details "up front" with the planning application or submitting their details for a proposal together in one package. JH.

On 25 July JH responded to a query relating to the new Fee Regulation provisions concerning conditions. He is not only wrong about the date that the new fees came into effect (6th not 1st April), like others he has misquoted what they actually say. The 2008 Amendment to the Fees Regulations says; "Where a request is made to a local planning authority for written confirmation of compliance with a condition or conditions attached to a grant of planning permission, a fee shall be paid to that authority..." (my emphasis). The Regulations do not say that 'where a request is made to (partially) discharge a condition, a fee shall be paid'. To discharge a condition where further approval is required is usually a two stage process. The submission of whatever details are required by the condition; and the completion of the development in accordance with the approved details. The condition cannot be said to be "discharged" until both stages are complied with. Then, and generally only then, can the authority confirm that a condition has been "complied with". If someone wants that confirmation then a fee should be charged. LP.

I acknowledge my mistake regarding the date and apologise. On the substantive issue I have received a reply from another reader drawing attention to the government’s November 2007 response to the consultation on the then proposed fee changes which supports LP’s interpretation. Since drafting my 25 July comments, however, I have learnt the government sent a letter to local authorities subsequent to Circular 04/2008 to clarify the matter. This states the fees are payable both when an application is made before development commences seeking, say, approval of materials, and if after completion written approval is required that it has been carried out in accordance with those approved materials. As I said in my original response, this new provision seems to be causing confusion. I consider this is because the legislation and the accompanying circular are not well drafted.

In my experience, there is a big difference between the charges made by authorities for supplying copies of planning decisions. Some provide them free to download from their websites. Others argue that since decision notices are legal documents, charges of more than £10 should be levied. Are authorities not required to provide copies at a reasonable charge? JJ.

Good practice guidance issued in 2004 on access to and charging for planning information explained that the government is committed to encouraging free access to information beyond the minimum legislative requirements and to making sure that any related charges are reasonable. The appeal decision by the Information Tribunal in Markinson v Information Commissioner (2006) supported the advice at paragraph 5.19 of the guide that a "reasonable" charge would be similar to commercial rates at photocopying shops, which are around 10p for each A4 sheet. Higher charges will only be justified where the authority can demonstrate good reasons and these cannot take account of related staffing or administrative costs. If an authority exceeds the recommended rate and cannot give compelling reasons for doing so, you should complain. PM.

Response

I cited PM's advice in support of my complaint to an authority about its high charges for decision notices and its practice of preventing notices published on its website from being downloaded or printed. After a lengthy delay I received an email from the departmental head. This explained that following a review it had been decided that the authority's existing charge did not fully cover the costs incurred in providing the service, "which of course includes staff time and postage together with the provision of necessary equipment". The authority has now increased its photocopying charges to £7.29 per copy from 1 April. I intend to complain to the information commissioner. Meanwhile, I would be grateful for your views.

Further Response

The authority appears to be showing an arrogant disregard for the tribunal's decision and the good practice guidance issued in 2004 on access to and charging for planning information. This explained that the government is committed to encouraging free access to information beyond the minimum legislative requirements and to making sure that any related charges are reasonable. This stance reflects previous statements in the 2001 planning green paper that planning application documents should be available at low or no cost, including free downloads from websites. In Markinson, the Information Tribunal held that a "reasonable" charge would be similar to commercial rates at photocopying shops, which is around 10p per sheet. It also made clear that higher charges will only be justified where the authority can provide good reasons. Factors such as related administrative or staffing costs should not be considered. So I agree that a complaint to the information commissioner is justified in this case. PM.

Further Response

When I recently asked to inspect the file for an application determined in 2005, a local authority informed me that it charged £12 for this service. It went on to explain that the reason for the fee was that someone would first have to go through the file to remove anything that they did not want me to see. On what basis are local authorities allowed to make such charges? If they are, can you please refer me to the relevant guidance?

Further Response

I interpret regulation 8(2)(b) of the Environmental Information Regulations 2004 to mean that a local planning authority should not charge for allowing an applicant to inspect environmental information, such as that contained in planning history files, as long as it is carried out at the local authority's preferred place of examination. This appears to accord with the approach taken by the Information Tribunal in Markinson v Information Commissioner [2006] and good practice guidance issued by the government in 2004 on access to and charging for planning information. Given the government's open file policy, censorship of application files is seldom justified. PM.

An authority refuses to register any application accompanied by ownership certificate B until 21 days have elapsed from the date that the landowner was notified. In my view, this is ultra vires and is nothing more than a blatant manipulation of performance figures. Is there any legal basis for the authority's approach? TA.

The authority has misinterpreted the procedural requirements. Under section 65(5) of the Town and Country Planning Act 1990, read in conjunction with Article 5 of the General Development Procedure Order 1995, an authority "shall not entertain an application for planning permission unless any requirements imposed by virtue of this section have been satisfied". These include the completion of a certificate stating either that the applicant is the sole owner of all the land to which the application relates or has given notice in accordance with a development order. Certificate B is in the latter category. Section 65(2) of the Act requires notice to be served on any person other than the applicant "who on such date as may be prescribed by the Order is an owner of the land to which the application relates". The date prescribed under Article 6 of the Order is 21 days before the date of the application. These requirements do not mean that an application cannot be made until 21 days after the notice has been given, but that the authority may not proceed to determine an application that is accompanied by certificate B until 21 days have passed from when the notice was served. PM.

Circular 02/99 explains what an authority must do about adopting a screening opinion when an application is submitted without an environmental impact assessment and involves a schedule 2 development. It says that where an authority decides that an assessment is required, the applicant must be notified within three weeks and full reasons given. The determination must also be placed on the planning register. But where an opinion is given that an assessment is not required, there appears to be no need to notify the applicant. Instead, the determination should be placed on the planning register within three weeks of its receipt and the application decided in the normal way. Is this correct? Surely it would be courteous to inform the applicant accordingly? DR.

Circular 02/99 gives policy guidance on the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. Neither the circular nor the regulations require an applicant to be notified where an authority gives a screening opinion that an assessment is not required. However, I cannot envisage that in such circumstances an authority would not wish to notify the applicant of its decision as a matter of course. PM.

Response

Where a planning application for schedule 2 development is made without there having been a screening opinion or screening direction, then the local planning authority must adopt a screening opinion under regulations 5(4) and 7(1). That screening opinion, whether or not it requires an assessment, must be sent to the applicant under regulation 5(5). This is because regulation 7(1) says that "paragraphs (3) and (4) of regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1)". Regulation 5(5) stipulates that "an authority which adopts a screening opinion pursuant to paragraph (4) shall forthwith send a copy to the person who made the request". As regulation 5(4) is applied by regulation 7(1), regulation 5(5) applies to that screening opinion. The High Court and Court of Appeal agreed that regulation 5(5) applied to screening opinions made because of regulation 7 in Younger Homes (Northern) Ltd v First Secretary of State [2003], although the point was not disputed. RH.

Further Response

In national parks and other "sensitive areas", every planning application is given a screening opinion. Almost all development could be considered as an "urban development project" by someone. All urban development projects, however insignificant, are covered by schedule 2, paragraph 10(b) of the regulations. No-one can be sure that failure to provide a screening opinion for a house extension will not result in an aggrieved neighbour seeking an ombudsman investigation or judicial review. This means that they must all have a screening opinion if proposed in a sensitive area. Not sending copies of such opinions unless asked is a sensible option. It saves answering telephone calls asking for explanations of the EU directives on environmental impact assessment. There is a lot of other information of the "no news is good news" variety that we do not tell applicants automatically. The planning system exists to serve the community, not the Royal Mail or the photocopying industry.

A number of authorities have recently refused to accept minor amendments to permissions. They argue that since there is no statutory basis for any informal method of altering a permission, the modified development would be unlawful if a minor change is authorised by a correspondence exchange. So any conditions of the original permission would no longer have effect. While officers refer to a "new court case", I have been unable to identify it. Can you help?

The case in question is Sage v Secretary of State for the Environment, Transport and the Regions [2003]. But it is only recently that some authorities, following counsel's advice, have interpreted this as having a bearing on the long-established practice of allowing minor amendments to existing permissions without requiring the submission of a fresh application. Some lawyers argue that the abandonment of this informal procedure is misguided and that the judgment has been misinterpreted, with too much weight placed on a non-binding opinion by one of the judges. While there is no express provision in planning law that authorises the practice in England and Wales, support may be found in case law such as Lever Finance Ltd v Westminster City Council [1970] and Bernard Wheatcroft Ltd v Secretary of State and Another [1980]. In Wheatcroft, the court held that the test was whether the development would be so changed that it would deprive others of the opportunity to comment. Circular 31/92 advises that in considering minor amendments, authorities must decide whether a proposed variation is "significant enough" to require a fresh application. But recent court judgments have held that the scope for such variation to be achieved by some means that bypass the statutory safeguards for the public must be extremely limited. The judgment in Sage was that unless an authorised development is carried out fully in accordance with the permission, the whole operation will be unlawful and any conditions will cease to apply. However, its implications for minor amendments are debatable. The position in Scotland is clear. Section 64 of the Scotland Act provides that an authority may, at the applicant's request, vary any planning permission where it considers that the variation is not material.

My authority is expecting an application to be submitted shortly for a wind farm. Should the planning fee be calculated on the basis of the floor area of the proposed turbines, including the compound, or assessed as a change of use of the land?

Since the proposal involves operational development, the application cannot be considered as merely being one for the change of use of the land. It is evident that the calculation of fees for such developments often causes difficulty. This is because the red line site boundary is often drawn widely to allow for site optimisation and environmental, ecological and engineering mitigation measures. There appears to be a consensus that wind turbines are classed as plant and machinery, which falls within category 5 of the fees schedule. Despite the relatively low site coverage by roads, turbines and buildings, wind farm application fees are usually calculated on the full extent of the application site, including any intervening land. This means that the majority of applications for wind farms will attract the maximum fee. I understand that the government has advised local authorities that while there are no central guidelines on how wind farm fees should be calculated, it is studying such applications to find out how and at what level fees are set. It may then provide advice in a revision of the fees circular, if necessary.

My authority has been criticised by residents for describing an application as a change of use to a "C2 residential care home" without reference to the type of care proposed. No such details were included with the application and permission was granted without any objections being received. Aggrieved residents now say that had they known the type of operation they would have objected. Is it good practice to seek these details when validating such an application, or is this unnecessary given the intended scope of the Use Classes Order 1987 and the separate role of registration authorities? JW.

It should not generally be necessary to distinguish between individual types of facility within the same use class unless it is thought that there are good planning reasons for believing that they would have materially different effects. There may be a particular need for a specialised form of care establishment in an area where it would not otherwise be permitted. This was the case in a decision from Buckinghamshire in 1990 (DCS No: 54440972) concerning a home for elderly, mentally frail people aged 65 or over and patients suffering from Alzheimer's disease. Potential parking problems or the effects of noise or antisocial behaviour on neighbouring occupiers may justify distinguishing between different types of care, whether for the young, elderly or those needing special medical treatment. In such cases an authority should seek further details once the application has been registered and assessed. Where appropriate, conditions should be imposed to restrict the use. These considerations should not be left to the registration authorities. PM.

My client sought reserved matters approval shortly before the expiry of the three-year time limit on an outline planning permission. After extensive negotiation, an appeal for non-determination was lodged but this was dismissed. A revised proposal is now being considered but will fall outside the three-year period. Is the authority able to refuse to accept this planning application and has the outline permission now lapsed, even though the five-year time limit for commencing development has not yet expired?

Pursuant to section 92 of the Town and Country Planning Act 1990, applications for the approval of reserved matters must be made within three years from the date of the permission or within any longer or shorter period that may have been specified by the local authority. Section 92(2)(b) requires the approved development to be begun no later than two years after final approval of the last of the reserved matters. Section 93(4)(b) provides that where such an application for approval is made after the date by which the condition of the permission requires it to be made, it "shall be treated as not made in accordance with the terms of the permission". Previously, non-compliance with the time limit for submission of reserved matters was not fatal because it was possible under section 73 to extend this by varying the condition. Since that opportunity no longer exists, my view is that your client's permission has now lapsed and the local authority is entitled not to accept any new application for reserved matters approval.

In my opinion, under the terms of the statutory condition, if all reserved matters have been submitted within the specified time limits then the outline permission can never lapse. Surely the wording says that it is valid until two years after the final approval of reserved matters? If the reserved matters are never approved then the permission will continue indefinitely. There is no mechanism for it to lapse. The statutory wording also implies that there is no means by which an authority can ultimately refuse reserved matters approval. The wording only refers to the "final" approval of reserved matters. Many years ago it was a commonly held belief that, under planning law, authorities could not ultimately refuse reserved matters approval once they had granted outline permission. This seems equitable. Section 93(4)(b) does not come into operation in the circumstances described by AR because an application for approval of all the reserved matters was originally made in accordance with the condition. If it were not possible to lawfully resubmit applications for reserved matters approval, authorities could revoke outline permission without paying compensation through the procrastination of their planning officers. I cannot believe that those who drafted this section could ever have intended that a permission would be made statutorily incapable of implementation by authorities being able to simply do nothing and delaying their decision. I would be interested in your comments.

I do not agree with PC's hypothesis. My original advice is supported by counsel's opinion and cancelled guidance at paragraph 57 of Circular 11/95, which dealt with resubmissions. This made it clear that once the time limit for applications for approval of reserved matters has expired, no application for such an approval can be made.

I submitted an outline application for an agricultural dwelling together with a farm management plan and financial assessment. At this stage I am simply trying to establish the principle of the development. Permission already exists for a temporary mobile home. However, the local authority has refused to register the application without "scale parameters" and an indication of the siting of the proposed dwelling. I argue that this would not help in determining whether there should be a permanent dwelling on the farm and that because the proposal is only in outline form, these details would not form part of the application. I believe that the authority should first register the application and then seek any further information that it requires within one month of receipt. Do you agree? DC.

By virtue of recent amendments to Article 3 of the General Development Procedure Order 1995, all outline applications in which the layout and scale of the proposed development are to be reserved for subsequent approval are now required to state "the approximate location of buildings, routes and open spaces" and the "upper and lower limit for the height, width and length of each building". No exemption is made in the case of applications for permanent agricultural dwellings, regardless of whether this information is necessary for the principle of the proposed development to be established. In accordance with new section 327A of the Town and Country Planning Act 1990, the planning authority cannot entertain an outline application without these details. They must therefore be submitted in Order for the application to be validated. PM.

Although it is no longer possible to extend the life of an unexpired permission by applying to vary a time limit condition, is the streamlined procedure laid down in regulation 3 of the Town and Country Planning (Applications) Regulations 1988 for renewing permissions still available? If so, is a design and access statement required and does a fee of £135 still apply?

While guidance on the renewal of permissions at paragraph 60 of Circular 11/95 has been cancelled by ODPM Circular 08/2005, the provisions in regulation 3(3) that allow for the streamlined renewal procedure have not been revoked. They therefore remain in force. My interpretation appears to be shared informally by the DCLG. The circumstances in which design and access statements are required are set out in Article 4C of the General Development Procedure Order 1995 and include most applications for outline or full permission for operational development. Related advice in DCLG Circular 01/2006 and the best practice guide published by the Commission for Architecture and the Built Environment is silent on the need for statements to accompany applications to renew existing permissions. However, cancelled guidance in Circular 11/95 explained that local authorities have the power to require further information when dealing with applications under this procedure. This could include a design and access statement. In my view, the application fee in this instance would be £135.

If an application is submitted on the correct forms and accompanied by the right fee with a full set of drawings, are discrepancies between the plans and elevations, such as the omission of a chimney or dormer window, sufficient for it to be considered invalid? Or is this something that should be picked up during the planning assessment?

I am not aware of any relevant guidance on discrepancies between drawings. However, substantial errors in application plans have been held to invalidate a permission. A failure on the part of a planning authority to spot discrepancies can result in findings of maladministration. Where it is clear to an authority on receipt of an application that there are inconsistencies between drawings, in my view it is entitled to refuse to validate the application until these have been corrected. It is prudent to do so at that stage because the application, once registered, will be the subject of consultation with third parties. Leaving this matter until the merits of the proposal are considered may only cause confusion.

An authority has recently decided that any third party representations on a decided application must be removed from the planning file before it is inspected by the public. The authority claims that legislation now prevents this and that these documents should not form part of the public record. It does, however, accept that when a planning appeal is lodged, third party representations must be made available. I have not encountered this problem with any other authority. Is this approach correct? CA.

I am unaware of any recent changes to legislation that support the authority's stance. Third party representations are background papers that members of the public are entitled to see in accordance with the Local Government (Access to Information) Act 1985 and the Environmental Information Regulations 2004. Denying access to such correspondence is also contrary to the government's "open file policy" as set out in its good practice guidance on access to and charging for planning information, issued in September 2004. You should seek a written explanation from the authority before considering whether a complaint to the information commissioner would be justified. PM.

I recently made an application under section 73 of the Town and Country Planning Act 1990 to remove or vary an existing planning condition that restricts opening hours. Despite there being no changes to the design of the development, the authority requires a design and access statement. Since I consider that such applications are not for planning permission in the strict sense, this seems wrong. What is your view? SA.

Advice in DCLG Circular 01/2006 and best practice guidance issued by the Commission for Architecture and the Built Environment is silent on this matter. Article 4C of the General Development Procedure Order 1995 provides that statements are necessary for an "application for planning permission", with three exceptions. These include those for a material change in the use of land or buildings. As the legislation makes clear, an application under section 73 is for planning permission. The effect of a successful application is not an amendment of an existing permission but an entirely new permission. Where the application concerns operational development, regardless of whether any changes are proposed, a literal interpretation of the statutory provisions suggests that a statement is required. However, it need not be long. One or two pages may suffice. PM.

Most authorities appear to have adopted a three-minute period for applicants, objectors or other interested persons to address the relevant planning committee. Only one such period is usually allowed, which seems fair and in accordance with the rules of natural justice. But one authority with which I am dealing has no limit on the number of persons who can speak. So in some cases the committee is addressed by several objectors, each having three minutes, while the applicant is restricted to just three minutes. Do you agree that this is unfair, as the applicant is clearly disadvantaged? IE.

There is no national guidance on this matter. The Local Government Association has advised that procedures for addressing committees in person should be set out in local protocols. Practice across the country varies. Typically, as you say, three minutes only is allocated in total for those speaking in favour or against an application. So if there are a number of objectors or supporters to a proposal, a single spokesperson must be nominated. I agree that the practice you describe seems unfair since it appears weighted in favour of objectors. Where local procedures are fundamentally flawed it is likely that they will be identified in Best Value performance reviews. In certain circumstances, a complaint to the local government ombudsman may be justified. PM.

Response

I recognise my authority as the subject of IE's query. Our public speaking scheme has operated since November 2002 and was commended in a recent report from the Audit Commission, which found that the council is providing a good planning service. While there is no limit on the number of speakers, they must have previously objected to the application in writing and given notice of their intention to speak. This is simply in the interests of planning an effective and efficient meeting. Speakers not only object to proposals but sometimes speak in support. Normally there are just one or two speakers, but occasionally there may be up to four or five. For more complex applications, applicants and agents may be allowed more than three minutes at the chairperson's discretion. There is a second opportunity to speak on applications that are the subject of a committee site visit. Where significant numbers of residents wish to speak, the authority encourages one or two spokespersons to be appointed. Where there are several speakers, the chair asks them to try to avoid repeating points that have already been made. For all but the most complex applications, it should be possible for a competent agent acting on behalf of an applicant to deal with the key issues in three minutes. But although some do so, others seem more intent on extolling their own virtues or those of their client, complaining about the planning officer or trying to remind members how to do their job.
Such interventions are more often than not shown up by clear, well-prepared, well-argued and well-timed representations from the general public. I know who my members are most impressed by and it has nothing to do with weight of numbers or length of presentation. I have been in touch with IE and he accepts that his "complaint" is not well founded and is not territory for the ombudsman. MG.

My authority has had complaints of an individual operating a business from home, causing greatly increased vehicle movements in a residential area. A site visit failed to establish the scale of Activity. Previously, authorities have asked complainants to keep a log of suspicious Activity, such as vehicle movements, which may reasonably be observed from the complainant's property. However, opinion among authorities seems to be divided over whether such a request would now be tantamount to requiring complainants to conduct "covert surveillance", contrary to the Regulation of Investigatory Powers Act 2000. What do you think? PS.

The 2000 Act updates legislation on the interception of communications in the light of technological changes, such as growth in use of the internet, and puts other techniques for monitoring citizens on a statutory footing. Guidance on the use of covert surveillance by public authorities under part II of the Act is given in a Home Office code of practice. This explains that it does not cover "general observation". Many authorities have adopted enforcement policy statements that take account of the Act's provisions, particularly with regard to procedures for carrying out surveillance of an alleged contravener's site. Under the Act, "directed surveillance", which appears to include non-intrusive covert monitoring of the sort you have in mind, is restricted to a number of prescribed public authorities. So I am unsure where a private individual engaging in such an activity stands in relation to the recent statutory provisions. Can any reader with a specialised knowledge of this matter help? PM.

Response

I served as a police officer for 28 years and had a great deal of experience applying the legislation before I joined a planning authority to work in enforcement. My own interpretation is that the regulations only apply to authoritative bodies for the purposes of covert surveillance and not to members of the public. However, I am concerned that if I were to ask a member of the public to carry out any form of surveillance by keeping a "breach of control diary" or some other technical means, this could be construed as using that individual as a "covert human intelligence source". The only way I can see round this problem - and it is the policy that my authority has adopted following legal consultation - is to write to the developers who have caused the alleged breach and inform them that the situation is being monitored. Beyond that, my authority feels that such notification is enough to protect the complainant's identity.

Permission was granted for a multi-storey building with retail at ground level and other uses above. The developer wishes to alter the shopfronts and roof-mounted services. The authority requested a fresh application for the entire development, which was submitted. But changes in policy mean that more onerous planning gain requirements now apply. Could the developer not have simply submitted an application that referred to the existing permission with substitute plans for the elements he wishes to change? Both the authority and the developer's agent say that an unimplemented permission cannot be amended. Is this correct?

I think that this is arguable. Guidance on altering unimplemented permissions is limited to minor amendments only, in the context of whether a fresh application is needed. The courts have held that a permission should be self-contained and clear on its face. With the exception of permissions granted under section 73 of the Town and Country Planning Act 1990, it should not be necessary to refer to another permission when construing what has been approved. Even so, in some circumstances local authorities and the Planning Inspectorate have entertained applications to alter elements of an approved scheme, including changes of use to undeveloped buildings. The most common situation is where substitute house types are proposed. In your case, since both developments appear to be discrete elements, it might be considered that they are capable of independent assessment without the need for a revised application for the entire scheme.

My client obtained outline permission for a house in a conservation area before the requirement for a design and access statement took effect. The plans submitted with the application simply show the site edged in red and indicate the house's approximate position. Does the reserved matters application need to be accompanied by a statement? GS.

Article 4C of the General Development Procedure Order 1995 provides that a design and access statement is only required for applications for planning permission, subject to certain exceptions. Since an application for the approval of reserved matters is not one for permission, the Article has been interpreted to mean that such applications do not need to be accompanied by a statement. Neither DCLG Circular 01/2006 nor the best practice guidance issued by the Commission for Architecture and the Built Environment refer to the need for statements at this stage. The fact that the outline permission was granted before the new requirements is irrelevant to this consideration. PM.

A planning authority decided that its prior approval was not required for a large barn on a working farm covering more than 5ha and notified the applicant accordingly. The barn was built a few metres from where it was shown in the notification. Following complaints from a resident, the authority changed its mind and decided that the building is objectionable and harmful to visual amenity. It claims that the barn is unlawful and has threatened enforcement action. Would the building become lawful if it were removed and replaced exactly as shown on the submitted plans? WL.

As the authority has already determined that its prior approval is not required for the siting, design and external appearance of the building were it to be built in the position shown in the application, it is hard to see why it should object or how it could successfully take enforcement action if the barn were repositioned to accord with the approved scheme. Such relocation works would satisfy condition A.2(2) to class A, part 6 of the General Permitted Development Order 1995 and so, in my view, render the building lawful. PM.

My local planning authority granted permission for a controversial new dwelling in the countryside subject to a section 106 agreement and a condition restricting its occupation to someone employed or last employed by an adjoining leisure complex. Shortly afterwards the applicant resubmitted the application, which is now described as the "erection of a replacement dwelling without the occupancy restriction". Since this is an ill-disguised attempt to circumnavigate the agreement and the procedure for its discharge, would we be justified in refusing to deal with the application on the grounds that it is exActly the same as the one already approved? Or does the power to decline to accept applications only apply to previous refusals?

Section 70A of the Town and Country Planning Act 1990 enables an authority to decline to accept resubmitted applications in certain circumstances where they follow a previous refusal. The purpose of this section is to prevent an applicant from wearing down an authority's opposition to a proposal through repetitive applications. It does not apply to resubmissions that follow a previous permission. Your authority should treat the application as though it were made under section 73 of the Act, which expressly allows an application for permission for the development of land without complying with conditions of a previous permission, and determine it accordingly. The existence of the planning obligation does not override this requirement.

My authority is intending to scan files for applications that have been decided onto an electronic storage system. In Order to simplify the system and reduce costs, we would like to dispense with consultation letters and only keep the application form, the approved plans, the officer's delegated report or the committee report and the decision notice. However, the council's solicitor cannot tell me whether there is a legal requirement to keep all consultation letters indefinitely or even for a specific number of years after a decision is made. What is your advice?

The Local Government (Access to Information) Act 1985 requires that copies of the agenda, reports and minutes be kept open for public inspection for six years after the meeting, although this is reduced to four years for background papers. These are defined in the Act as "those documents relating to the subject matter of the report which disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and have, in his opinion, been relied on to a material extent in preparing the report, but do not include any published works". They would therefore include any views on an application expressed by statutory consultees and third parties.

When publicising planning applications, a local authority uses one standard notice to cover all the possible categories of development that must be advertised. So the notice says that the application is for listed building consent "and/or" for a major development, conservation area consent, development affecting a right of way and so forth. The only way that the public can find out whether a particular interest is affected is to inspect the application itself, often at considerable expense in time and money. The local planning authority claims that the notices are right and proper but, since the public is not being clearly informed, I disagree. Am I right? GR.

The requirements for publicising planning applications are set out mainly at Article 8 of the General Development Procedure Order 1995. In the case of development affecting the setting of a listed building or the character or appearance of a conservation area, they are found at sections 67 and 73 respectively of the Planning (Listed Buildings and Conservation Areas) Act 1990. The publicity requirements for applications for listed building or conservation area consent are set out at regulation 5 of the Planning (Listed Buildings and Conservation Areas) Regulations 1990. None of these provisions details the required format of the notice that must be published. Circular 19/92 offers guidance on the publicity provisions for planning applications and gives advice on good practice, including duplication. Although it relates to a different context, paragraph 19 warns against combining notices or using them as alternatives to each other, since this is likely to cause confusion and result in failure to comply with the statutory provisions. As a general rule, this is sound advice. While the notices you describe may meet the minimum publicity requirements, it is inevitable that they will cause confusion because they lack clarity and precision. So in my view they do not represent best practice. PM

A planning authority has advised that since 1 May it will no longer return a copy of the application plans stamped either "approved" or "refused" with the decision notice. It has warned that applications that do not refer to drawing numbers will no longer be registered as valid. Is there any legitimacy for this approach? JJ.

There is no requirement for an authority to return a copy of the plans submitted with an application after it has been determined although many authorities have adopted this helpful practice. Local authorities are currently able to set their own requirements for the information that must accompany applications. However, the new 1APP national planning application, which is currently being rolled out and by the 1 October 2007 will be the only legal method of submitting most planning applications, does not require a list of submitted drawings. PM. 

In today’s target-driven planning system, many authorities are refusing to allow amendments to applications prior to determination. Applicants are told that they must either withdraw an unacceptable application or face refusal. Recently I had to withdraw an application because the floor space of a proposed flat was just one sq m below the required standard. This practice seems grossly unfair when a simple amendment would have resulted in an approval. Is the authority right in this case? DJ.   

While planning authorities are under no obligation to accept an amendment to an application after it has been submitted, they have wide discretion in such matters. Negotiation between planning officers and applicants is a critically important and long-established part of the development control process. In British Telecommunications v Gloucester City Council [2002] the Court held that it is plainly in the public interest that proposed developments should be improved in this way. So applicants should not be required to go through the formal process of submitting a fresh application unless, following the test in Bernard Wheatcroft Ltd v Secretary State for the Environment [1982], the changes necessary to overcome an authority’s objections would deprive others of the opportunity to be consulted. The need for authorities to meet decision-making targets does not justify abandoning negotiations with applicants. Indeed, failure to respond positively to requests by applicants to negotiate may result in costs being awarded against authorities on appeal due to their unreasonable behaviour, particularly in enforcement cases. In your case, if the authority resisted a request to amend the proposal to overcome what appears to have been a minor obstacle to granting permission, this seems vexatious. PM.   

While the council's position is undoubtedly vexatious, it is typical everyday practice now. The only way that the council's unreasonable behaviour can be dealt with is through the appeal process. However, since an appeal against refusal would relate to a plan which it is agreed requires alteration, it could not succeed. The only question that arises is whether the unsuccessful appellant could be awarded costs, although this is not a situation which I personally have ever encountered. In other words, there is effectively no way that this authority can be punished for being vexatious. This is why local authorities are being unreasonable as a general rule and it arises out of their target-driven mentality.

While the authority's approach appears unreasonable, there is a general point to be made about the responsibilities of applicants and in particular agents. Before submission, they should make themselves aware of the standards and policies that apply to their proposal, check with the authority on the likelihood of any departure being accepted and take heed of the advice given. If they do not follow that professional approach, it is not so unreasonable for the authority to be reluctant to spend any more precious staff time on the matter.

I recently submitted a planning application to build a new house. Although I own the site, the proposed access would cross a small strip of land that is not under my control. Despite enquiries to the local authority and the Land Registry I was unable to establish who owns the land. I therefore submitted a certificate D with the application and placed the required notice in a local newspaper. Permission for the dwelling was subsequently refused. If I lodge an appeal or resubmit the application, am I required to place another notice in the local paper? I have been given conflicting advice on this matter. CP.

In accordance with section 65 of the Town and Country Planning Act 1990 and Article 6 of the General Development Procedure Order 1995, where applicants for planning permission do not know who owns any part of the application site despite having taken reasonable steps to identify such persons, they must publish a notice of the application in a local newspaper. In the case of either an appeal to the secretary of state or the resubmission of the application to the local authority, a new certificate D must be completed and a fresh newspaper notice published, pursuant to Articles 7(1) and 9(1) of the Order. PM.

I am an experienced development control officer and recently submitted an application to a neighbouring authority for an extension to my house. However, the authority has refused to validate my application. It says my submitted location plan is unacceptable because it has entered into a mapping services agreement with the Ordnance Survey and Crown copyright and database rights must be displayed on any copies of mapping data. Can the authority insist on this requirement, which relates more to copyright issues and associated revenue generation than to validity considerations? If the authority maintains its stance, have I any right of appeal after eight weeks?

Authorities are able to require an application to include such particulars as they think necessary, provided they do not conflict with a development Order. The Town and Country Planning (Applications) Regulations 1988 stipulate that applications must be "accompanied by a plan which identifies the land to which it relates and any other plans and drawings and information necessary to describe the development which is the subject of the application". There is no reference to the need for an Ordnance Survey map or for copies to be stamped as having been made under licence. Neither is it a recommendation of the government's best practice guidance on the validation of applications or a requirement of the 1APP national application form. However, the use of Ordnance Survey-based location maps is widespread and it is reasonable that copies should be obtained legitimately. They may be downloaded for a fee from the internet without the need for a personal licence. Although you could appeal against the authority's failure to register the application eight weeks after its submission, I consider such Action would be pointless.

PM correctly alludes to the requirements of regulation 3(1)(b) of the Town and Country Planning (Applications) Regulations 1988. However, regulation 4(a) is also of help by clarifying what further information authorities can require in respect of a full planning application, as it specifically limits it to that which is "necessary to enable them to determine the application". The inclusion or otherwise of an Ordnance Survey copyright licence reference number is unquestionably not a material planning consideration. So the authority is clearly wrong in refusing to validate the application and is also precluded from requiring the submission of such unnecessary information even after the application has been registered. I am left wondering why on earth an authority would even contemplate taking on the role of enforcement agent for the Ordnance Survey. The undoubted pressures on development control staff do not need to be added to by further unwarranted requirements. It is a sad thing to witness, but in my experience when one authority introduces some pernicious requirement or limitation others follow suit. So I cannot agree that taking this matter to appeal would be pointless. This practice should be nipped in the bud. LC.

While Ordnance Survey data is indeed copyright, very accurate alternative location information is available free from the internet. Together with the use of global positioning systems, this may be favoured by many applicants. I would have thought that any attempt by a planning authority to make the Ordnance Survey a monopoly supplier for statutory purposes would run foul of European law.

A similar situation exists in the Republic of Ireland. Even though the Planning and Development Regulations 2006 require only that the Ordnance Survey sheet number be marked on appropriate drawings, authorities insist that maps be purchased from Ordnance Survey Ireland or an authorised agent or, if copied, state the agent's licence number. I have experience of applications being invalidated on this basis. Ordnance Survey Ireland mapping cannot be obtained free of charge from the internet.

A condition imposed on a permission for four apartment blocks required facing materials to be approved by my local authority. This was secured following agreement that each block would use the same materials so that they relate well to an adjacent conservation area. Two blocks have been built but the developer now wants to change the materials for the remaining two. My authority has advised that it wishes to see the development completed in accordance with the approved details. But the developer wishes to pursue the matter and challenge any unfavourable decision. I am unsure what procedure is available. What is your advice? SD.

The authority should invite the developer to apply to discharge the condition on the basis of the revised details, which may be treated as a planning application in accordance with Article 21 of the General Development Procedure Order 1995 and determined accordingly. Any refusal may be appealed in the normal way under section 78(1)(b) of the Town and Country Planning Act 1990. PM.

Since acquiring a site with outline permission I have discovered that a small part lies outside my ownership. Can I submit an application for reserved matters approval on the reduced area? What powers does the local authority have for ensuring that the whole of the original site is developed? Can it serve a completion notice? IG.

There is limited scope for developers to change their schemes from those approved in principle at the outline stage provided the essence of the proposal remains the same. Obviously much depends on the proposed development, the terms of the permission and the function of the land that you do not own. If its exclusion from the reserved matters application would materially alter the nature of the permitted development, the local authority would be within its rights not to accept the application. Alternatively, you could apply for reserved matters approval on the entire site and serve notice on other owners. But if you were to do this and only build that part of the development that lies on your land, the planning authority could serve a completion notice under section 94 of the Town and Country Planning Act 1990 on all those affected by the notice. I have doubts that this would be appropriate in this case. PM.

Response

PM correctly notes that serving a completion notice in this case would be inappropriate but fails to explain why. His advice comes across as inaccurate and confusing. Completion notices under section 94 of the Town and Country Planning Act 1990 should not have been termed as such because that too leads to confusion. The purpose of the notice is simply to bring the permission to an end. It does not require any completion of the authorised development. In the circumstances described, there is no way in law that an authority can ensure that this or any other development is actually finished. A completion notice simply prevents the developer from doing any further works and has no effect on the works already carried out. It is very rarely used and there is a right of appeal. RD.

Further Response

RD is right to highlight the confusion that surrounds completion notices. There is no means for ensuring that a development is completed other than, as suggested at paragraph 61 of Circular 11/95, following compulsory acquisition by the local authority. The purpose of a notice is to encourage the completion of a development by terminating the permission by a set date. It is because they are rarely effective that section 94 notices are seldom used. Their consequences were reviewed in Cardiff County Council v National Assembly for Wales and Malik [2006], which confirmed that a completion notice does not, as some apparently believe, render the partially completed development unlawful.

My authority's software supplier has removed the facility to stop and restart "the clock" on the eight-week period. It claims that the DCLG insists that this period should not be interrupted under any circumstances. However, paragraph 25 of the annex to Circular 31/92, which deals with application fees, states that if a cheque is subsequently dishonoured, "the running of the eight-week period will be suspended between the date the authority notifies the applicant that the cheque has been dishonoured and the date it receives the appropriate fee". I believe this is still the case. Am I right? SH.

While Circular 31/92 has not been cancelled, the advice you mention appears to have been superseded by the government's latest draft guidance on the validation of planning applications, which replaces interim best practice guidance issued in 2005. Paragraph 27 of the draft guidance advises that if an apparently valid application is later found to be invalid following registration, the original start date for processing the application should be disregarded. It explains that the time from application to decision should start again on the date the application is made valid. This is the only circumstance in which the start date should be amended. The guidance adds that "when determining the processing period the clock must not be stopped". PM.

Regulation 3 of the General Regulations 1992 confers powers on local authorities to determine planning applications for their own developments. Legal colleagues advise me that planning authorities cannot enter into planning obligations for such applications or enforce against themselves if, say a condition is not complied with. However, a district council could enforce against a county council. Circular 19/92 offers no guidance on this. What is your view? DV.

Your legal colleagues are correct as such actions would be similar to a person suing themselves. As enforceability would not normally be an issue, in drafting conditions for councils’ own developments, authorities can sometimes use wording which would not be appropriate for a private development to obviate the need for a planning obligation. Though enforcement action cannot be taken in relation to council developments, failure to comply with the terms of a planning permission would be extremely bad practice and could ultimately result in a complaint to the ombudsman. JH. 

Response

DV asked about the enforceability of conditions or obligation where permission is granted for an authority’s own development. JH replied that enforcement action cannot be taken against council schemes (Planning, 1 August 2008, p25).

You appear to be perpetuating the convention that local authorities cannot enforce against themselves. I have checked with our solicitors and they are unable to find any such statute. I agree that local authorities should not have to enforce against themselves, but regrettably this is not always the case. Just count the number of listed town halls with unauthorised banners on the front.
I hope that local authorities do not seek refuge in Annexe 2 paragraph 2.2 of circular  10/97 and decide that it is not ‘expedient’ to take action against themselves. LS.

Further Response

The topic of councils taking enforcement action against themselves may now be a bit stale (DC Forum, 1 and 15 August), but a footnote might be useful. The reason why Local Planning Authorities (LPAs) cannot enforce against themselves is because of the legal nature of the LPA, not because of any statutory prohibition. Although nearly all planning decisions are taken by committees, designated members or officers, these all act under powers delegated by the council; it is the council that is the LPA. Equally, where development is carried out by a council it is the same legal entity that does it. JH was right to say that the LPA enforcing against itself would be akin to people suing themselves. Similarly, neither can a LPA enter into a section 106 agreement with itself. An interesting case illustrating this principle is R. v Bassetlaw District Council, ex parte Oxby (1998). When the LPA wished to obtain judicial review of permissions it had granted unlawfully; it was accepted on all sides, including the judge at first instance and the Court of Appeal, that the authority itself could not do that, and the council leader initiated the proceedings. MA.

We are submitting wind turbine applications across England and Wales. The application sites are modest at around 10 metres x 10 metres to allow for blade overhang, normally within a field and more often than not associated with agriculture. There do, however, appear to be discrepancies in the application fees charged by different authorities. What fee should we be paying? JD.

I consider that these should be charged in the "other operations" category, i.e. category 9(b) of part 2 of schedule 1 of the Fee Regulations, £170 for each 0.1 hectare site area or part thereof. Clearly it would be in your interests in making such applications to minimise your site areas so only land where operational development takes place is included within the red site boundary, though in some instances this may need to be extended to include land covered by nature conservation activities, landscaping, etc. JH.

Does the £85 fee to discharge details to comply with conditions apply to civic amenity waste site applications? Paragraph 128 of circular 04/2008 states this charge does not apply to fee category 11 proposals, use of land for the deposit of waste or refuse. Instead they are covered by regulation 11B inserted into the Fee Regulations by the 2006 amendment which provides for fees for inspections of mineral and waste sites. In my experience inspections for civic amenity sites are not covered by regulation 11B, only landfill sites. Also, can applications to discharge multiple conditions be covered by one £85 payment? If so, does the whole application have to be refused if one element is not acceptable? There seems to be inconsistency in administering these charges between authorities. HP.

The charges for discharging condition details were discussed in Forum on 25 July. Whilst circular 04/2008 advises regulation 11B takes precedence over these charges for mineral and waste applications, I cannot see the legal justification for this. The new regulation 11D in the Fee Regulations does not say these charges do not apply to mineral and waste schemes and the 11B provisions are for monitoring compliance with planning control in all respects. I suspect, however the circular is correct. Can readers throw any light on this issue? Paragraph 124 of circular 04/2008 indicates that one fee is payable for multiple applications to discharge conditions. I cannot see anything to prevent part approval of details to comply with conditions and paragraph 128 encourages negotiation on such issues. Regarding the comment at the end of your question, the provisions for fees to discharge condition details do seem to raise a lot of issues and they are not very well explained in circular 04/2008, so I am not surprised authorities interpret the rules differently. JH.

Response

In the 15 August 2008 issue there was a query regarding fees for discharging conditions for minerals and waste facilities.  I would comment that HP is correct in stating that the monitoring fees for minerals and waste sites do not cover civic amenity sites.  I agree with JH that the new regulations appear to give no legal justification for the statement in Para 128 of circular 04/2008 that the fees under regulation 11D do not apply to such sites.  I would imagine therefore that authorities could legally charge such a fee.  There is a clear failure in this part of the circular to differentiate between the process of approving schemes required by condition, and confirming compliance with conditions.  While there could be some logic to not charging fees on the basis that the latter are already covered by the site monitoring fee regime, this is clearly not the case for the former which is completely separate.  There is therefore a lack of clarity in the circular.  My authority has written to DCLG twice since the fees revision to seek clarification and is still waiting for a response. JS

Further Response

The advice you have been giving in about charging to discharge conditions seems to be at odds with the advice now offered in the Journal of Planning and Environmental Law (JPEL) 2009 No 4 p452. Would you consider this advice and set out your views whether authorities are entitled to charge to discharge conditions as many have been? VM.

Further Response

In both responses I said that the £85 and £25 fees were payable for the approval under such conditions. In my second response I indicated that the government had sent a letter to local authorities subsequent to circular 04/2008 indicating that the fees are payable both when an application is made before development commences seeking, say, approval of materials, and if after completion written approval is required that it has been carried out in accordance with conditions. In the JPEL, its editor, Michael Purdue, has argued that these fees are only payable in the latter circumstances. The fee legislation and the subsequent government note have no doubt been drafted on the advice of government lawyers. On the other hand Michael Purdue is an eminent lawyer and his comments are carefully argued. As the fees involved are relatively small and failure to pay such small amounts could result in expensive delays to developments, it would seem unlikely that there will be a test court case on these issues. It is unsatisfactory that these provisions are not worded more clearly, but unless there is a test case we will have to presume the government interpretation is correct. JH.

My client recently obtained permission to convert and extend a house to form three flats. The application was submitted before the fees increased and he paid a £530 fee to the Council, reflecting a net increase of 2 units. He has since decided to have another unit within the building which involves only minor changes to the internal layout. A revised application is to be submitted and the Council has advised that it will attract a £1005 application fee, i.e. 3 x £335. This seems unfair. It ignores the permission that has already been granted and involves him paying again for part of the conversion that has already been approved, indeed an increased amount for those units! All the main issues have already been addressed with the original application. I believe a £335 fee for the one extra unit would be appropriate. Have you or your readers any comments? AB.

Theoretically there are two ways to avoid paying a £1005 bill. You could try to persuade the council your client is entitled to a "free go". Circular 04/08 advises, however, "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 is eligible for the ‘free go’’". The only way to take this further would be to lodge an appeal after eight weeks against non-determination and see if the inspectorate accepts the appeal, but within the context of the circular advice they would seem quite likely to side with the planning authority. Alternatively, if the proposal involved subdividing one unit, you could apply for that as a conversion of the single unit to two and just pay for the additional unit. If the proposal involves rejigging all the units, however, and the Council does not consider you are entitled to a "free go", it would be correct in charging for three additional units. If a further fee is payable, it would be at the increased rate. JH.

A London Borough has informed us that they charge £1,000 + VAT for pre-application meetings in relation to sites over 1ha. Is there a legal basis to charge for such requests especially given the government encourages developers to carry out pre-application negotiation in the interests of positive planning? MP.

Under the provisions of section 93 of the Local Government Act 2003 local authorities may now charge for pre-application discussions. Fuller details of this can be found in section 5.121 of Development Control Practice. The level of charges is set by the planning authority though they should not be at a level whereby they make a "profit". Whilst I can fully appreciate the advantages of pre-application discussions, given the power to charge for them and many councils’ budgets being hard-pressed, I can also understand why such charges are made. JH.

Response

Some time ago I acted for clients who paid £1,000 for such a service.  The council’s leaflet promised contact within 10 working days to arrange a meeting date and "confirmation within 10 working days of the meeting of the advice and views given ".  In the event,  the pre-application meeting was held five weeks after our enquiry was made, while the report was received 9 weeks after that - and included additional requirements that were neither discussed at the meeting nor referred to in subsequent e-mails.  I felt that our clients' contract with the council was breached (by this time they had lost their funding for the project) but my clients were reluctant to press for the fee’s return.  Are you aware of any case where the breach of what, by payment of a fee, becomes a contract in law has been taken to court? AR.
The charging provisions are relatively new, so I doubt there have been any court cases yet, but perhaps a reader has been involved in one. JH.

Further Response

Some time ago I acted for clients who paid £1,000 for such a service.  The council’s leaflet promised contact within 10 working days to arrange a meeting date and "confirmation within 10 working days of the meeting of the advice and views given ".  In the event,  the pre-application meeting was held five weeks after our enquiry was made, while the report was received 9 weeks after that - and included additional requirements that were neither discussed at the meeting nor referred to in subsequent e-mails.  I felt that our clients' contract with the council was breached (by this time they had lost their funding for the project) but my clients were reluctant to press for the fee’s return.  Are you aware of any case where the breach of what, by payment of a fee, becomes a contract in law has been taken to court? AR.

Further Response

The charging provisions are relatively new, so I doubt there have been any court cases yet, but perhaps a reader has been involved in one. JH.

I recently submitted an application for a building comprising six flats with alternatives of A3 or B1 on the ground floor. The fee was calculated on the number of flats and amount of ground floor space (100sqm). The council refused to validate on the grounds "for alternative uses, half the planning fee is required, in this case £335". I assume the planning authority is requesting the additional fee based on Section 10 of Schedule 1, Part 1 of the Fees for Applications and Deemed Applications Regulations 1989 which refers to "alternative proposals". Do you consider an extra fee should be sought on this basis? SP.

The Section 10 provision applies where two or more applications are made as alternatives - e.g. if a shop unit is being marketed and the owner wants to seek permission for, say, A2 and A5 uses, to make it attractive for more prospective tenants - so makes two alternative applications. I would not apply this to where one application is made. JH.

The 2008 amendment to the Fee Regulations introduced fees for councils to confirm compliance with conditions attached to a planning permission.  Is there an obligation, as with normal planning fees, on an authority to make such charges or is making a charge discretionary? JG.

Whilst the basis for such fees is the same as all others, circular 04/08 does include the following somewhat curious advice, "Local planning departments may chose to ‘confirm’ some conditions informally without seeking the new fee, where they find it appropriate and more efficient to do so. It will be for the developer to decide whether any approval provided will suffice, or whether he or she should pay the new fee and request a more formal statement of compliance." I presume this advice relates to situations such as a site meeting where samples are agreed verbally to comply with a condition requiring the approval of materials. JH.

This council has received two applications for change of use of agricultural land, one for "residential housing use" and one for "B1, C1, C2, C3 and D1". Each application has a change of use fee of £335, application forms, design and access statement and red line site plan. No other detailed information has been submitted relating to the physical development of each site. Rightly or wrongly, we have registered the applications. This level of information for a full change of use application appears totally insufficient to determine the applications, and appears to undermine the recent changes to outline applications which now require a great level of detail. Has the council erred in registering the applications on this basis? Can the council now request further information from the applicant and, if such details are not received, refuse to determine the application or refuse it on grounds of insufficient information? RW.

Whilst some use classes encompass activities which can be carried out in the open, e.g. B1, and the Use Class Order makes provision for this, this certainly does not apply to C1, C2 and C3 uses. As you suggest, the applicant is attempting to circumvent the requirements for fuller information now needed for outline applications and the application submitted is basically nonsensical and should be treated as being invalid. The development control system provides for operational development and changes of use and an application for a change of use should not encompass proposals which necessitate building. Although it has been registered, regulation 5(3) of the General Development Procedure Order 1995 allows a council to declare an application invalid subsequently. JH.

We have received an application for an "extracare" facility for elderly people. Anyone occupying the self-contained units is encouraged to be independent but care is available as needed. The proposal includes a considerable amount of ancillary floor space, including a restaurant, hairdressers, shop and fitness centre. How should the fee be assessed?

The self-contained living units should be classed as dwellings and fall within category 1 of the schedule to the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 as amended. The restaurants and other facilities would not be considered ancillary to dwellings and would fall within category 2.  The fees under these two categories should be added. Communal areas such as corridors serving both category 1 and 2 floor space would need to be apportioned under the provisions of paragraph 14(3), part 1, schedule 1 of the regulations. JH.

Circular 02/08 appears to suggest local validation lists can only include items that are recommended in the guidance 'Validation of Planning Applications'. I am aware of a council which has published a local validation checklist on their website that includes additional requirements which are not listed within the guidance. Can the council insist on this information to validate an application? Could costs be awarded against the council for unreasonable behaviour should it go to appeal?  MJ.

Whilst paragraph 21 of circular 02/08 could be read as you have, article 5 of the General Development Procedure Order 1995 as inserted by the 2008 amendment does not restrict councils to including only items listed in "Validation of Planning Applications" in their local lists. Having said that, if a council refused to register an application for the lack of information it would be unreasonable to require, it would run the risk of a costs award. JH.

A terrace of three shops originally had planning permission for retail on the ground-floor and nine flats above. At some point the occupier started to use the flats for storage and offices associated with the shops - it is not known if this was more than 10 years ago.  A new owner wants to have ground-floor retail and 9 flats above which accords with the legal planning position. The council requires change of use for the flats that have in the past unlawfully been used as storage and the associated fee that goes with this per dwelling as the last-known use was not residential. The applicant argues that the flats have planning permission already for residential use and therefore should not be subject to this fee.  Who is correct? If the applicant wanted to use the flats for storage, would they be exempt from a fee as the council does not consider it to be a flat anymore? LC.

Generally planning permission is required for any material change of use, even from an unlawful use back to a lawful one, though s57(4) of the Town and Country Planning Act 1990 provides an exemption for reversion to a lawful use after the service of an enforcement notice. Your client is seeking permission for the change of use of the upper floors from an unauthorised storage/office use to nine flats, so the fee should be assessed on that basis, i.e. 9 x £335.

Regarding your supplementary question, your client would be seeking to obtain planning permission for the change of use from 9 flats to the present storage/office use, as presumably they do not have evidence to obtain a certificate of lawful development. The fee for this would be £335. It would not be exempt. JH. 

If a council obtains counsel's advice on a planning application, is it obliged to disclose this under the Freedom of Information Act 2000? TA

Generally such disclosure would be protected by s42 of the Act which covers legal professional privilege. JH.

A council requires in its local validation list a unilateral obligation providing for infrastructure contributions, the draft being on its website. They also require £500 with the application for checking the document, however. If it is not paid they invalidate the application. Is this reasonable? TV.

This does seem unreasonable, especially when the fee is £500 and is for approving the authority’s model wording, so the staff time spent checking it would presumably be minimal, and on a small application this would double the fee. Your only option in this situation is a non-determination appeal. JH.

We are processing two applications involving access onto trunk roads.  On both the Highways Agency has issued a holding direction under the General Development Procedure Order 1995 that prevents us making a decision.  Both agents are agreeable to the clock being stopped as the applications lack information, the need for which has come to light since registration. In what circumstances can a council "stop the clock" on an application?  Is it acceptable if the applicant and the council agree to stop the clock until required additional information has been submitted in these circumstances?" SD.

I am not entirely clear what you mean by "stopping the clock". If you mean agreeing a longer period to determine the proposal with the applicant under regulation 20 of the General Development Procedure Order 1995, clearly you can do this. Assuming the application takes longer than 8/13 etc weeks to determine, however, for purposes of statistical targets it would "count against you". The alternative, if you wanted to avoid this, would be to ask the applicants to withdraw and resubmit later with the necessary additional information. JH.

A council will not validate a resubmission for outline planning permission for 48 new homes, the previous outline application being for 87, as it considers it a change in character and description and a further fee is payable. All other criteria in regulation 8 of the Fees Regulations 1989 (as amended) are met. Does a simple change in the number of dwellings constitute a change in character and description for the purposes of the "free go"? RM.

There is little guidance on this issue and in any event each case would need to be considered on the merits of its own circumstances. A small change in dwelling numbers on a large scheme should not in my view result in the denial of a "free go". In your case, however, the number of dwellings proposed in your amended scheme is just over half that originally put forward, so an appeal against non-determination might not be successful especially if the schemes did not include significant common elements. JH.

Does development adjacent to a conservation area boundary always require a site notice? Other publicity for an application which I am involved with covered every neighbour and some now unhappy at the development taking place, have raised the perceived oversight. The often used phrase, "land adjacent" tends to encourage a blanket rather than a considered approach to applications that appears the objective of the legislation. LW.

Section 73 of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires a site notice when "in the opinion of the local planning authority development affecting the character and appearance of the conservation area" is involved. The legislation does not require all proposals to be advertised in this way - a judgment has to be made. If a proposal has not been advertised when it should have been, the only remedies available would be judicial review or official complaint and possible ombudsman referral. JH.

We often receive applications where the applicant incorrectly states there are no trees, hedges, bats etc on the site.  What is best practice in such a situation?  SD.

Assuming the incorrect answer affects the determination of the application and additional information, for example an arboricultural report when there are trees, is required, I would advise declaring the application invalid and restarting the 8/13, etc week period anew when the additional information is received. JH.

I have made an application to replace a 45m2 building with one of 55m2. The council assesses the fee on the basis the floorspace is 55m2 , i.e. £335, but I consider it should be assessed on the 10m2 increase, i.e. £170. Who is correct? SC.

In my experience authorities always assess the floor area on the basis of the total new floor area, not giving a "discount" for any floorspace that might be demolished. JH.

A client received a permission in May 2006 described as an "Outline application for the erection of 18 flats."  However, condition 1 is the standard 5 year condition normally applicable to a full permission.  None of the standard outline conditions regarding reserved matters approval and subsequent commencement are attached. Should I advise my client that the position as an outline permission takes precedence and he should submit details or seek renewal by May in line with the normal outline position? Can he build the flats in accordance with the approved sketch designs without further reference to the council except as far as the other conditions require? TH

Clearly this is a mistake made by the Council. I consider it highly likely that the courts would interpret this permission as effectively being a full one as in the case of R v Secretary of State for the Environment ex parte Jordan 1992 where it was held where there is conflict between the description of a development and a condition the condition prevails. If you acted on that basis, however, it could raise conveyancing difficulties when the flats had to be sold. I would therefore recommend that you do now seek renewal if circumstances have not changed and this is likely to be granted or apply to have the details approved. If you consider it possible the permission might not be renewed or details might not be approved, a further option would be to make a lawful development certificate application. JH. 

What is the situation if an authority receives an application for what is actually permitted development? Are there any adverse practical, procedural or legal consequences if permission is granted? RT.

The council is not empowered to grant a certificate of lawful development in such circumstances. It can only seek the withdrawal of the application or determine it. In the case of Newbury District Council v Secretary of State for the Environment 1981, it was held the existence of a permission did not debar a landowner from asserting that permission was not required. Thus any conditions that might be imposed would be of no practical effect unless the relevant permitted development right were withdrawn before the permission expired, in which case the landowner could still implement the proposal relying on the permission. JH.

Can you advise on charging fees for renewing planning applications? The 1995 Circular on fees said a flat rate fee of £170 was payable. The 2008 Circular makes no reference to this. Most  authorities in this area no longer accept a flat fee to renew a planning permission and insist on a full new application with all relevant supporting information. I would appreciate your views. DH.

When the General Development Procedure (Amendment) (England) Order 2008 came into force the procedure whereby a permission that was about to expire could be renewed by letter with the fee at the rate for variation of a condition was withdrawn. This is confirmed by paragraph 13 of Circular 2/2008 Standard Application Form and Validation.  An application for renewal now requires the full fee for that development and must be on the standard application form with full plans, etc. JH.

Response

In response to the question about the fees for renewing planning permissions on 27 March I find paragraph 13 of circular 02/2008 confusing because it does not make it clear whether it refers to renewing permissions which have lapsed or are about to lapse or permissions where a condition requires an activity to cease or a building be demolished at the end of a period. My authority has received an application which seeks to extend the life of a recycling operation which has to be removed by March 2010. What should the fee be assuming you believe the process should involve a fresh application on standard forms with full plans? KT.

Further Response

The requirement for full fee, full plans and new form applies where the applicant wants to extend the period to commence work, currently three years, and applies irrespective of whether that period has expired. If a permission is granted for a temporary period, e.g. to assess the impact of a use on the surrounding area, then the provisions of s73 or s73A of the as amended apply, i.e. the proposal is to continue the development without the "temporary" condition. As with any proposal to continue a development without complying with a condition, the application can be made by a letter which identifies the planning permission and the condition accompanied by the necessary ownership certificates and the requisite fee of £170. JH.

Do authorities have discretion on whether access to the public highway is shown as part of a planning application site? BM.

The Planning Portal website notes on submitting planning applications state the red site boundary, "should include all land necessary to carry out the proposed development (e.g. land required for access to the site from a public highway)". I am not aware of any cases, etc making this a legal requirement, however. Certainly before granting permission councils should be satisfied they know how a site will be accessed. In some circumstances a "Grampian" condition relating to access may be appropriate. JH.

A housing association plans to reclad 34 houses in a number of locations throughout this authority’s area. They argue they can submit this under a single application with a £295 fee. We do not consider that that they can do this, as the properties are on different sites, so they should submit individual applications for the sites (i.e £150 where the application relates to one property on one site and £295 where the application relates to two or more properties on the same site). Is this correct? KD.

I can find nothing in the Town and Country Planning Act 1990 (as amended) or the General Development Procedure Order 1995 (as amended) which prevents an application site being "split" as this applicant proposes to. Furthermore, a scenario could be envisaged where there is, say, an intention to change a single factory which is split over two sites which are not contiguous to, say, a single warehousing operation. One would expect that to be submitted as one planning application. Thus, I believe the housing association is correct in its view. There may be logistical administrative problems in dealing with an application such as this – for instance, some authorities’ computer systems might not be able to cope with listing a proposal against several road names or it might not be very obvious to neighbours that their consultation letter does relate to an adjoining property – but these have to be dealt with as best they can. JH. 

My client objected to a neighbour’s garden extension application. During its processing, the council invited an amendment which involved a substantial extension of the site area. The resultant impact on my client was far greater, but, the council, without further recourse to my client or the parish council, approved the revised scheme claiming it knew what my client’s views would be. I have made the point to the council that that the site should not have been extended without a fresh application and they should have re-consulted. The council has failed to justify its actions, leaving the matter to be resolved by the ombudsman. Do you agree my interpretation? RC.

There is no specific power for authorities to allow amendments to applications, but in BT v Gloucestershire County Council [2001] it was held that it was plainly in the public interest that applications could be amended. The judgement also inferred that in such matters the interests of the public must be protected by further consultation. I cannot see any reason why an authority cannot negotiate an amendment which enlarges a site and, if they consider that improves the scheme in planning terms, such amendment is to be encouraged. If a site has been substantially enlarged, however, I would expect reconsultation to take place. The ombudsman would be more likely to find in your client’s favour, if you can show they would have raised objections to the amendment which had not applied to the original scheme. The ombudsman cannot overturn the decision even if there was maladministration and will only award compensation if the decision would probably have been different. JH.

Articles 10 to 13 of the General Development Procedure Order 1995 as amended provide for consultations before the grant of planning permission with various public bodies but not the local Primary Care Trust (PCT). An authority we are dealing with in a case involving primary health care issues is reluctant to consult the PCT about them, apparently for that reason, notwithstanding there being regional and local plan policies on health provision. Is there any guidance on this subject? EA.

Planning Policy Statement 12 – Local Spatial Planning (paragraphs 4.28 and 29) requires authorities to consult with Primary Care Trusts and other stakeholders in preparing core strategies. I am not aware of any government requirement or advice to authorities to consult PCTs in relation to planning applications, however. Nevertheless, if a PCT could give advice relevant to dealing with a planning application, it would seem sensible to consult it. If the local authority is reluctant to do this, you could always contact the PCT directly and see if it wishes to comment. JH.

Response

In his response, JH stated he was unaware of any government requirement or advice in that regard. However when it comes to choosing between in-kind and financial contributions, Table 3.1 in DCLG Planning Obligations: Practice Guidance July 2006 addresses circumstances where an organisation "such as the local authority or Primary Care Trust" is better placed to provide the infrastructure at similar or better value for money (than the developer) and at the desired quality. If so, how can the trust’s position be determined if there is no requirement to consult it in the first place? EA.

Further Response

Whilst there is no requirement for authorities to consult in circumstances like this, clearly it would be sensible for an authority to do so if such a situation arose. JH.

An authority has indicated they cannot register an application for the conversion of part of the building into two residential units as valid until we had provided a unilateral undertaking and administrative fee for a contribution towards open space required as a result of a policy in their adopted local plan. Such a request prior to registration seems potentially ultra vires or at the least very premature. I am aware judicial review or appeal against non-determination are potential options even if they returned the application. What are your views on this request? MR.

In theory an obligation could be a local list validation requirement. It does, however, seem unreasonable to insist on the provision of this before validation – for example, you might wish to put forward arguments that an obligation is not justified in the particular circumstances of your case and the authority would have to consider this as part of its assessment. The request for money in addition to the normal planning fees seems to be ultra vires as there is no legislative provision for additional payments to the normal planning fees. As you say, judicial review or an appeal would be the appropriate routes forward. An appeal would normally be cheaper and, if you lodged the application on or after 6 April, under the Planning Inspectorate’s new procedures for appeals, you could claim make a claim for costs even if it was a written representations case.  JH.

We are expecting a major application which crosses the boundary into a neighbouring authority. I want some clarification on how we deal with the application. I understand the application is submitted to both authorities but the one with which has the greatest site area gets the fee. If this is the case can just one authority send out the plans etc. to consultees and the other authority just send out a letter of notification giving their reference number? It seems stupid to duplicate the work, especially if one authority will not receive a fee. EH.

As you indicate, normally where a development crosses authority boundaries, the fee is worked out under the provisions of paragraph 8 of part 1 of schedule 1 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 and goes to the one with the largest site area. Though there is one development, there are nevertheless two applications and both authorities have to comply with the procedures for consulting the general public under article 8 of the General Development Procedure Order 1995 and statutory consultees under article 10. In terms of consulting the general public, one authority, presumably that with the major share of the development, might wish to send consultation letters to neighbouring occupiers and the other just display a site notice; though if this is done the "lesser" authority should be given copies of all comments received. Though in my experience planning authorities notifying statutory consultees invariably send them a copy of the application, article 10 of the General Development Procedure Order does not actually require this. Thus, in such circumstances it would be acceptable for one authority to send a copy of the application. Obviously, where a development straddles a boundary authorities need to liaise to agree procedures, to ensure conditions are consistent, etc. JH.

Someone wants to build two outbuildings in their rear garden. Both would seem to meet the permitted development criteria. Is there anything to prevent them making one certificate of lawful development application covering both? GC.

There is nothing in planning legislation to prevent these being put on one application, though should it transpire one of the buildings does require planning permission, the whole application would then have to be refused. JH.

We have received an application with a declaration, certificate of ownership and agricultural holding certificate filled in with a handwritten company name in the signature box.  I understand an application is a legal document so the signature fields should be the completed with a person’s signature.  Our legal team is at a loss as to why the agent feels that a company name is a signature on planning forms since this would not be acceptable in any other fields of law. What is your view? EJ.

Electronic signatures are now acceptable on ownership certificates and application forms to facilitate Planning Portal submissions, so I would be wary of suggesting that a company name in the signature box is unacceptable. Clearly, if a false certificate is supplied, it is necessary to have someone to prosecute if this is considered appropriate, but a company is a legal entity so this does not preclude this. This, however, is an issue on which I would appreciate other readers’ views as I am not completely sure what the legal requirements in such respects are. JH.

Response

This is not a legal response but from a consultant's point of view. Until our firm converted to a limited liability partnership last year, we printed text and signed all our applications in our company name and not as individuals and never had any validity problems for this reason. Now the partners sign them personally followed by "for XX LLP" which would obviously satisfy EJ’s authority. However, one thing we are now grappling with now is whether our signatures could be copied and used by others fraudulently because they are scanned in to the Planning Portal and are, therefore, electronic.  CM. 

An agent who has submitted various details to comply with conditions says I should process them within 8 weeks, but I thought we should process them within 12 weeks or the fee is refundable. Can you clarify? RJ.

Under article 21 of the General Development Procedure Order 1995, unless a longer period has been agreed between the applicant and council, a non-determination appeal can be lodged after eight weeks. Under regulation 11D inserted into the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 last year, however, if the application for approval is not dealt with within twelve weeks the £85 or £25 fee should be refunded. JH.

My client is proposing a canopy over part of a school frontage. This will be supported by poles and there will be no other boundary demarcation.  The planning authority has indicated that, as a matter of common practice, it considers all canopies create floorspace for which a fee is payable. Looking at the advice in paragraph 66 of circular 04/2008, I consider the area covered by the canopy should not be included in the fee calculation. The canopy is meant to enhance the school’s appearance and to provide protection for those entering and leaving it, rather than as an extension to the school. Is the authority correct to impose a fee based on floorspace?  RN.

The paragraph 66 of circular 04/2008 advice implies not all canopies create floorspace, so this council’s "all canopies create floorspace" approach seems wrong. Given the examples quoted in the circular, that a filling station canopy would not create floorspace, but a Dutch barn would, from the information you have supplied I do not consider the area under this canopy would count as floorspace for fee purposes. Your difficulty in this situation is that, if the authority continues to dispute this, your only course of action would be to submit the scheme with what you believe is the correct fee and appeal against non-determination after 8 or 13 weeks. There is unfortunately no quicker procedure for determining fee disputes. JH.

If an incorrect ownership is submitted with an application and only discovered when work starts on site, is the application invalid and does work have to stop or can the planning authority regularise the situation in any other way? AJ.

The only way the permission could be invalidated would be by an application for judicial review. Depending on the circumstances, if work on site has commenced, the court might not consider it in the interests of good administration to quash the permission, especially if the permission was granted a while ago. JH.

Can you advise on fees to confirm compliance with conditions on permissions that are solely required as a result of removal of permitted development rights through an article 4 direction or planning condition, e.g. to approve external finishes on an extension in a conservation area which requires permission because of an article 4 direction? I have looked through the Fees for Applications and Deemed Applications Regulations 1989 (as amended) and circular 04/2008 but there appears to be no mention of an exemption in such instances. PS.

Regulation 5 of the Fee Regulations provides the exemption for proposals which are permitted development but for an article 4 direction of planning condition. Regulation 5, however, only applies the exemption to regulation 3 which relates to normal applications for planning permission. Thus, ironic though it may seem, there is no exemption for confirmation that conditions have been complied with when a proposal is permitted development! JH. 

We submitted an application for filling a former brickpit accompanied by an environmental statement (ES). The authority did not validate it as the nature of the infill material was not specified so they could not decide if it was a county matter; no non-technical summary of the ES was provided and the ES was not considered to supply the information required by schedule 4 the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (the EIA Regs) adequately. Pre-application talks had been held with the authority and a formal scoping opinion was requested. The county council had already confirmed in writing that the landfill phase was not a waste operation and would operate under an exemption certificate from the Environment Agency. I would be interested to have your thoughts and those of other readers who have found themselves in a similar position. SC.

Paragraph 5 of part II of schedule 4 of the EIA Regs requires a non-technical summary and if that is not supplied the application would in my view be clearly invalid. If the infill material was not actually specified in the application, even if it had been agreed beforehand, that would also seem a technical reason for invalidity as the authority could not decide if it was a county matter. Regarding the third issue, regulation 19 of the EIA Regs provides that where the authority is of the opinion that the statement should contain additional information in order to be an environmental statement, they or he shall notify the applicant in writing accordingly. Procedures are then laid down for providing and publicising that information. The application should not be declared invalid but rather additional information should be requested under regulation 19. Thus, as far as I can see from what you have told me, the application should not have been declared invalid for the third reason. JH.

We recently submitted an application for a gas tank on an extensive site, where there have been numerous applications relating to different buildings.  The application had a tight line around the tank site and the building to which it is related.  The application was refused and the authority has advised that we now have to pay a fee for another application as the applicant has already had one ‘free go’ on this site.  It is important for us to understand if the ‘free go’ allowances have now changed to allow only one free go on a site. PT.

Whilst I believe the "free go" provisions have not changed in this respect since planning fees were introduced, I understand authorities have become aware that they are tighter than they were previously thought. Para 86 of circular 04/2008 clearly advises "The applicant may benefit from the ‘free go’ exemption only once for any given site, regardless of whether the type of development now being proposed differs from that proposed previously." As your query relates to what you describe as an "extensive site", to be denied the "free go" the red line boundary of a previous application and subsequent one which attracted the "free go" must be the same as the new applications or the boundaries must overlap. If, say, they are at the opposite ends of the site and their boundaries do not overlap, then you can claim another "free go". If a different person makes an application, that person can be entitled to a "free go". JH.

Does a householder application for permission for a vehicular access need to be filled out on a full planning permission or householder application form?  Also is the fee £150 under category 6 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 (as amended) or £170 under category 7b? JM.

The householder form is for "for works or extension to a dwelling". I would presume a vehicular access would be classed as "works" and the form seems suitable for this purpose. Furthermore, completing the full planning permission would be more difficult for an ordinary householder.  Thus, I would suggest the householder form should be used. Regarding your query about the fee category, it is actually 7a, "The carrying out of operations (including the erection of a building) within the curtilage of an existing dwelling house, for purposes ancillary to the enjoyment of the dwellinghouse as such" etc, so the fee is £150. JH. 

An outline application and subsequent reserved matters have been approved.  We have now received details to discharge pre-commencement conditions from both the outline permission and the subsequent reserved matters.  Can these be dealt with under one submission and one fee of £85 or should two separate submissions and fees be submitted? JM.

There is no guidance on this under the Town and Country Planning (Fees for Applications and Deemed Applications) (Amendment) (England) Regulations 2008 or circular 04/08 except the Regulations refer to "conditions attached to a grant of planning permission".  I would consider the outline and subsequent approval of details to be one planning permission and therefore just £85 should be charged, but this is a personal view. JH. 

Paragraph 72 of Circular 04/2008 on "Planning-related Fees" states there is a fee concession for alternatives on the same site "if different proposals ... are all submitted on the same application form by ... the same applicant, a concession is available". The requirement for a single form is often problematic as the developments are usually different, with different descriptions and plans.  Also, one would assume that the alternatives would require separate decision notices meaning using a single form would be confusing.  In these circumstances, it would seem illogical, and is it usually impossible, to submit alternatives using the same form and this can mean authorities resist the concession.  What is the reason for the alternatives to be made on the same form? MF.

This provision relates to paragraph 10 of part 1 of schedule 1 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 (as amended). The main situation where this could be used is for alternative uses where the right to switch between them for 10 years under schedule 2, part 3, class E of the General Permitted Development Order 1995 would kick in. It would not be helpful in a situation such as when a site could clearly take 10 houses but perhaps 12 could be squeezed on, as an application cannot be part approved/refused. If a developer makes an application under this provision, the planning authority must process it and should only issue one decision. This might create some difficulties in describing the proposals and listing the plans and in drafting conditions, but these should not be insuperable. I would agree that it would seem this concession would be more useful and easier to implement if it also related to two or more alternative applications made at the same time. JH.

I am involved in a case relating to a site which is exceptionally sensitive in relation to amenity.  When outline permission was granted for its development, the expectation was a few houses or bungalows would be proposed, whereas the reserved matters application is for 30 units in blocks of flats up to four storeys. Is it open to the planning authority to refuse the reserved matters application as contrary to the development plan even though an outline approval has been granted? SC.

This question relates to Scotland. In England and Wales changes to the form of outline applications were introduced in August 2006 so significant detail is now required for outline applications and permissions granted pre-August 2006 have generally expired, but equivalent provisions have not been introduced in Scotland.

The granting of the outline permission presumably indicates that the residential development of the site is in accordance with the development plan and any decision on reserved matters should not go back on that principle. There may, however, be other policies in the development plan which would be considered to be contravened by the details now submitted, e.g. policies on densities, building heights or impact on neighbouring properties,  and it would be appropriate to refuse permission on the basis the proposal contravened such policies. JH.

If a joint application is submitted (i.e. planning and listed building consent) on a 1app form and one application is valid and one not, can you make one valid or do you have to wait for both to be valid? JB.

Paragraph 47 of circular 02/08 advises the use of the 1app forms for multiple applications "does not alter the fact that these applications are legally distinct and their validity and determination should be treated as such by the local planning authority". Thus, the application which is valid should be registered and the further information or whatever required for the other obtained. JH.

I recently submitted an application to vary a condition on a planning permission.  However, the permission was subject to a s106 agreement that needed a simple amendment, so a draft deed of variation was submitted with the application. I have received an email from the council, asking my client to pay for an external solicitor to vet the deed for the council.  Otherwise, the application could not proceed. I would appreciate advice on the reasonableness of this and its legality. RT.

It is an accepted practice to include a contribution to legal costs to be paid as part of a planning obligation which paragraph B34 of circular 05/2005 recognises. In this instance, however, payment is requested at an earlier stage. I am not aware of any legal authority to support this practice or conversely any to say it is not legal. It does, however, effectively supplement the planning fee which suggests to me it is a dubious practice. I would, however, be interested to hear readers’ views. The charge could be avoided by providing a unilateral undertaking. JH.

Response

JH suggested a section 106 agreement could be varied by a unilateral obligation.  However, section 106A of the Town and Country Planning Act 1990 provides that a planning obligation may not be modified except by agreement between the planning authority and the person(s) against whom the agreement is enforceable or by an application to vary the terms under Section 106A(3).  It is therefore not clear on what basis it is suggested that a charge for external legal advice relating to a proposed draft deed of variation can be avoided by use of a unilateral undertaking. 

If the authority requires external legal advice in relation to a proposed variation to a section 106 agreement, it does not seem unreasonable to require the applicant to meet that cost. DG.
DG is, of course, right that a planning obligation cannot be amended unilaterally. In circumstances where an application requires a section 106 agreement, rather than the variation of an existing one, charges for vetting one could be avoided by submitting a unilateral obligation. JH.

Like many landscape architects, I am regularly involved in major planning applications that involve extensive landscaping, often well beyond the core development.  Previously, it has been accepted that as tree planting does not constitute development, this does not have to be within the application boundary.  As long as it is within the blue boundary, it can be enforced using conditions. Recently I have noticed many authorities have validation checklists requiring landscaping to be within the site, which has implications on application fees.  The basis for this is "The Validation of Planning Applications: Guidance for local planning authorities" which indicates the site should include all land necessary to carry out the development including landscaping. There is clearly a risk applicants could be deterred from offering extensive landscaping within schemes due to the fee implications.  Is there any legal basis for this validation requirement? If not, can anything be done to reverse this guidance? AM.

The legal requirement in the Town and Country Planning (Applications) Regulations 1988 is that a planning application should be accompanied by a plan which identifies the land to which it relates. I and no doubt you believe that landscaping should normally be an integral part of a scheme rather than added later as an "afterthought". On this basis there is a strong argument for including it in the site boundary, but on the other hand I can understand your concern about the penalty when the application fee is based on site area and planting is not operational development. Furthermore, it could encourage developers not to include landscaping in schemes at all, though this would, of course, mean the application would be more likely to be refused. I cannot think of an easy solution to this conundrum and would be interested to hear readers’ views. If you consider this guidance should be changed, and I can see a case for this, you should take the issue up with the Department of Communities and Local Government, your professional institute and/or your MP. JH.

Permission was granted for a house in the greenbelt on the basis of an applicant's personal circumstances. The applicant indicated willingness to remove a building elsewhere on the site and a condition was imposed requiring its demolition "upon occupation of the new house". It subsequently transpired the applicant did not in fact control this building. The actual owner of this building now faces a demand to demolish it. What is his position if he was not aware of the earlier application as notice was not served upon him? Would the condition imposed upon the earlier approval meet the tests set out in circular 11/95? CN.

The condition was no doubt imposed to protect the green belt’s openness and would be valid and reasonable. Generally it is better to phrase conditions in a negative way and had the condition specified that the proposed dwelling could not be occupied until the existing building was demolished, the council would have been to able enforce its terms. Given what has happened it would clearly be unjust to require the neighbour to demolish his building when he was unaware of the application. The applicant for the new dwelling has clearly committed an offence in completing Certificate A instead of B and could be prosecuted. In addition, however, it might be possible for a third party to apply for judicial review to have the permission quashed. Normally in such circumstances the council’s chairman would make such an application as a council cannot seek to have its own permission quashed. Usually, applications to review permissions have to be made within a short time of the decision, but in this instance, as the illegality did not come to light till later, the courts could well accept a late application. Such an application would also raise human rights issues as the applicant would lose his home, however. Thus, it would be essential to seek legal advice on this. JH.

Is it too late to control the size of a farmworker’s dwelling at the reserved matters stage to make it commensurate with the established functional requirement  for the holding (paragraph 9 of Annex A to Planning Policy Statement 7)?  The size was not limited by condition on the outline permission, but the design and access statement indicated it would not exceed 180 sq metres. TY.

It is not open to a local authority to refuse reserved matters so as to, in effect, revoke the outline permission (see circular 11/95, paragraph 45). Refusal of a reserved matters application may be justified if there is a sustainable planning objection to the details submitted, however. In this instance, the application was submitted on the basis of a maximum 180 sq metres floor area and paragraph 53 of Department of Communities and Local Government circular 01/2006 indicates the design and access statement forms a link between the outline permission and consideration of reserved matters.  Thus, if the dwelling exceeds 180 sq metres, refusal would be justified. JH.

When granting a renewal application under s73 of the Town and Country Planning Act 1990 is it necessary to include all previous conditions, including those that have already been discharged?  If discharging conditions previously agreed would be necessary this seems costly in terms of time to the planning authority and the applicant.  GB.

Circular 02/08 makes clear that a renewal permission is a new one, so previous condition cannot be relied upon. Having said that, as you indicate, it would be unreasonable where, say, external materials have been approved to require a further submission. Conversely, however, the applicant might wish to substitute alternative materials. Thus, I would recommend wording such a condition to allow the previously approved materials to be used or such alternatives as might subsequently be approved. Paragraph 30 of "Greater Flexibility for Planning Permissions" indicates different conditions can be imposed on a renewal application. JH. 

Affordable housing and infrastructure requirements make a housing development unviable.  The planning authority acknowledges this having received a viability exercise.  However they wish this to be checked by the District Valuer and have asked for a payment of £4,500 for this.  This seems wrong in principle.  Although the new application has not been submitted, they will in due course receive an application fee which should in part cover this.  Have you any experience of such charges before or after an application?  TB.

I have received an almost identical question from another reader, so clearly this is an important issue. This charge seems very similar to the requirement to pay for an external solicitor to vet an amended planning obligation raised in the 26 February column. An analogy could in both instances be drawn with agricultural appraisals, which authorities are expected to assess themselves (see paragraph 18 of Annex A to PPS7).  No mention is made here of charging fees to the applicant in cases where consultants are used. Charging for work carried out to assess an application does seem unreasonable to me, but I am not aware of any cases determining whether it is legal or not. I would appreciate readers’ views on this and it most certainly would be desirable for some government guidance to be issued on this point. JH.

Response

We were provided with the following advice by a consultancy arm of the government when we approached them for an independent appraisal, "With regard to the payment of fees, Homes & Communities Agency has issued a Good Practice Note: "Investment and Planning obligations- Responding to the downturn". In this Good Practice Note is a comment that it is common practice for developers to fund the cost of independent validation. The reasoning for this is that you have a planning policy which the applicant is seeking to vary. In order to assess the applicant appraisal you need advice which it is reasonable for the applicant to bear in these circumstances. We have found that applicants are prepared to pay the costs of having their appraisal reviewed." Accordingly, we have asked the applicant to pay for the independent appraisal, which they have done (reluctantly). MF.

Further Response

I agree that it seems wrong for an authority to make an additional charge if it needs external advice when assessing an application.  However, TB’s situation relates to a pre-application enquiry.  On a few occasions my authority has advised that it can give a certain amount of advice at pre-application stage, but that when the application is submitted, it will have to employ an external consultant for a second opinion.  The main circumstance tends to be for agricultural dwellings, but the situation has arisen with viability.  In that case, I advise prospective applicants that if they want this second opinion pre-application they will have to cover the council’s costs.  To me this seems reasonable, as the external consultation could result in the application never being submitted and there is no good reason for these extraordinary costs to fall to the general tax payer. MB.

Further Response

I have recently had an authority requiring a straightforward unilateral s106 undertaking to be submitted for external solicitors’ vetting at significant cost. I thought (although I had doubts) that may have been a matter for the ombudsman. I drew a distinction between a routine matter which the authority could deal with in-house and specialist consultancy advice where using external consultants was reasonable. The ombudsman would not investigate, because a refusal can be appealed.

In an appeal against such a refusal, the authority would have to substantiate its refusal. This would be difficult as the applicant has put evidence at application stage. I cannot conceive of defending an appeal in these circumstances. In preparing its case the authority would have to seek independent advice on the viability appraisal (at its own expense) and, if that supported the appellant’s case, the authority would have no defensible case and would surely seek a resubmission. I consider the appellant would be awarded costs.   I accept this is unsatisfactory way, as the applicant makes an unnecessary appeal. there is nothing in legislation on this issue and I consider it unlikely to be a priority for government guidance. It is, however, a way of making the authority reassess its position. PB.

Further Response

I acknowledge that such charging has become accepted practice but the charges are so inconsistent that something must be wrong.

For checking a unilateral undertaking that I (as a self-employed consultant) prepared for an education contribution, one legal department sought to charge £195 per hour up to an estimated £1200 maximum; county council consultants sought a further £400 to accept responsibility for charges up to £2500. Needless to say, without a protracted legal battle, the development would not have been approved.

In contrast, a neighbouring authority are about to adopt supplementary planning guidance on obligations providing for a charge of £400 to £ for the council's legal fees, but there is no reference to anything else.

I take your point about Para B.34 of circular 05/2005 but I think this is thin ice upon which councils are seeking to recoup charges. The paragraph could equally be interpreted as referring only to the contribution itself, which is effectively the money required to satisfy the relevant tests in the circular and not to meet legal costs.

As you point out Planning Policy Statement 7 does not mention councils charging to consider agricultural assessments. Surely the whole thing is no different from councils asking highway departments to analyse transport assessments or travel plans, for which no charge is made to the applicant. JE. 

Further Response

In a recent London appeal relating to a mixed-use development (DCS no: 100-067-745), the inspector commented that a proposed unilateral undertaking "has no agreement to pay the Council’s legal costs incurred in considering it and commenting on it. However, I see no reason why they should be reimbursed when a planning fee has previously been paid or why the appeal should be dismissed because the undertaking does not address this point". Does this give applicants more ammunition to say no to planning fees/costs? MS.

Further Response

The discussion on this issue was not conclusive. Your comments make a further useful contribution, however. Paragraph B34 of circular 05/2005 recognises it is an accepted practice to include a contribution to legal costs to be paid as part of a planning obligation. This situation is somewhat different, however, as there was a unilateral obligation and the council was seeking a contribution to consider this. JH.

My local council says I have to pay £770 (2 x £335) for an application to convert a domestic outbuilding into 2 small holiday units. I think the correct fee is £335 following guidance in paragraphs 26 and 27 of Circular 04/08. Who is correct? DH.

Paragraph 27 of the circular advises "a building intended to be built or converted for letting to a series of short-term paying guests is more likely to be regarded as a commercial guesthouse within Use Class C1, Hotels, than as a dwellinghouse". I presume this refers to a travellodge-type building where letting is usually on an overnight or short-term basis rather than more conventional holiday let where letting periods would normally be several days, especially as planning permission is not normally required to change from a holiday unit to a conventional dwelling. Thus, I side with the planning authority. Having said that, I do find the paragraph 27 advice somewhat curious and would be interested to hear if readers have views on or experience of this issue. JH

Response

Only last week my authority, which had hitherto considered they were C3 uses, was involved in the same situation/discussion as DH. The agent quoted the same section of circular 04/2008 and persuaded us to rethink our position and agree that perhaps they were C1 so he only had to pay £335 for a change of use of a building rather than £335 for each of the 2 dwellings created. I have been brought up that fee issues should not undermine sound planning principles, yet here we have a circular changing long-established views also backed up by our land use gazetteer.

Because of the way fee disputes are resolved, I would not want to argue the case in front of an inspector, especially in the current economic climate. My logic was paragraph 26 of circular 04/08 sets out C3 uses, but it is undermined by paragraph 27 which says short term lets (not defined) are more likely to be C1. I do not think they would have added this paragraph unless they envisaged a scenario where C3 fees should not apply, but as usual it would have been nice to know what that scenario was. I did add a caveat that presumably the agent would have no problem in agreeing that we could add a note to the description stating the authority considered any permission to be for a C1 use, and should, as often happens in these cases, anyone breach any occupancy time limit condition, a material change of use would undoubtedly have occurred. This may help us and others in rural areas where an unrestricted dwelling would be contrary to policy who are faced with trying to enforce breaches of such conditions and the difficulty of arguing if necessary that a material change of use has occurred. Agents/applicants beware; you cannot have your cake and eat it. KT. 

New use classes legislation has introduced "Class C4: Houses in multiple occupation". Do class C4 properties benefit from permitted development rights under class 1 of schedule 2 of the General Permitted Development Order 1995 (as amended)? Also, can an application for an extension to a C4 property be submitted using a householder form and would a design and access statement be required?  MM

In the case of Gravesham Borough Council v Secretary of State for the Environment & Michael O'Brien [1983] it was held that in assessing whether a property was a dwellinghouse one had to examine whether it had the facilities which might ordinarily be expected in a dwellinghouse. Within that context I would not consider a house in multiple occupation to be a dwellinghouse for General Permitted Development purposes and in my experience that view was taken before the recent changes.

The General Development Procedure Order 1995 (as amended) uses the same definition of "dwellinghouse" as the General Permitted Development Order 1995 does. Whilst applications relating to conventional dwellinghouses and, under the new provisions applicable from 6 April, flats generally do not require design and access statements, given that the same definition is used in both orders, I would consider a statement would be required for alterations to a C4 property unless the floor area was not increased. Similarly, as a C4 property is not a dwellinghouse, a householder form should not strictly be used for alterations to a C4 property, but I would suggest that, unless use of the wrong form causes particular problems, authorities should take a pragmatic view and process an application for a C4 property although it might be submitted on a householder form.  JH. 

Domestic wind turbines are getting bigger; I routinely receive applications for 20kW turbines less than 20m high located as close as 75m to neighbours. These applications have a brief supporting statement containing a generic noise assessment and turbine specifications. As they are beyond the statutory 20m neighbour notification distance, those most likely to be affected often remain unaware of the proposal, and as they are under 20m high no advertisement as a bad neighbour under paragraph 7 of schedule 3  of the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008 is needed. Would it be appropriate to advertise these types of developments if it is considered that they may affect the neighbours and the character of the area, as described in the criteria listed under paragraph 8 of Schedule 3? I have been unable to find a precedent bad neighbour advertisement of domestic wind turbines of a similar scale. MT

Under the regulations referred to Scottish planning authorities have to notify the owners, lessees and occupiers of land adjoining the site or within 20 metres of it. Also certain categories of applications which are likely to prove controversial listed in schedule 3 have to be advertised with press and site notices. This list includes the categories of "bad neighbour development" which had to be advertised in England and Wales before 1992 (including the erection of buildings over 20 metres high), but another category, paragraph 8, is added whose definitions are rather more arbitrary. These include developments which affect residential property by reason of noise, alter the character of an area of established amenity, cause noise between the hours of 8 pm and 8 am or introduce significant change into a homogeneous area. Depending on the nature of a proposal and the noise it would generate, a domestic turbine proposal might be considered to fit into one of these categories. A judgment would need to be made as the definitions are arbitrary, but my advice would be if in doubt advertise. If a proposal is considered to fall within one of these criteria, it does not have to be large-scale.  As my experience of Scottish planning is limited, I would be interested to hear if any Scottish readers have views on or experience of this issue. JH.

An authority has (after three weeks) declared an application invalid because the applicant's address on the form is given as 'c/o the agent'.  They claim that the requirements of article 4E of the General Development Procedure Order 1995 (as amended) to provide 'the particulars specified or referred to in the form' have not been complied with.  Do you agree? TA.

I am aware that some agents adopt this practice so letters from builders and others who wish to tender for work go to them not the applicant. I do not know of any court cases or appeals on this issue and the Department of Communities and Local Government guidance document "The Validation of Planning Applications" does not address this question. My main reservation regarding the practice is that if there is an issue about inaccurate ownership certificates and the local authority wishes to prosecute, the address of the applicant and possibly even their identity may be difficult to establish. On the other hand there may be times when an applicant does not have a normal address, for example a church which has yet to obtain its own premises. Strictly speaking what has been requested on the formhas not been provided, so the authority has an arguable case for invalidating the application. JH.

Having looked at the circular 04/2008 with regarding planning fees it appears different authorities interpret the ‘free go’ element differently. The regulations only refer to the ‘free go’ application following withdrawal, refusal, or non-determination. There is no mention of the status of application fees following the approval of a scheme. It appears some authorities charge an application fee for a second application following an approval whilst others do not. What is the correct stance on this? JS.

Whilst there have been subsequent changes to fee scales and other changes, the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 set out the basic rules for assessing fees. Regulation 7 sets down the provisions for a "free go" following an approval and regulation 8 following a withdrawal, refusal or appeal against non-determination. Similarly, circular 04/2008 explains the provisions for "free goes" following withdrawal, refusal or non-determination in paragraphs 83 to 89 and for "free goes" following an approval in paragraphs 91 to 93. Because these provisions are in different parts of the regulations and circular, presumably some authorities have not realised that there is an entitlement to a "free go" following an approval, but the regulations and circular are quite clear there is one. JH.

Response

Further to the recent query regarding the "free go" for re-submissions of applications it is clear that authorities also apply the free go on approval of details applications differently.  I have experienced this recently with two neighbouring authorities where one allows a "free go" but the other charges £85 each time.  What is the correct position? DC

Further Response

Paragraph 127 of circular 04/08, Planning-related Fees, states quite clearly that there are no free goes on applications for approving of details under conditions. JH

Further Response

Further to the item on "free goes" for fees on similar applications in DC Forum of 16 May, we have been denied a "free go" on a second application as the planning authority says the applicant is not entitled to one as they had a "free go" on a totally different scheme on the site some years ago. Is this interpretation correct? If a different person bought the site, would they be prevented from having a "free go"? MW.

Further Response

Paragraph 2(f) of regulation 8 of the Fees for Applications and Deemed Applications Regulations 1989 (as amended) and paragraph 86 of circular 04/2008 confirm the council’s interpretation is correct. Paragraph 87 of the circular goes on to explain that the exemption a "free go" can be obtained for a proposal in a different regulation category, e.g. if a free go has been granted on a full application, one could still be obtained on an application to vary a condition. Regarding the issue of change of ownership, the bar on additional "free goes" under the same regulation only applies to application made by or on behalf of the same applicant, so a change of ownership would mean there would be a new applicant and a new entitlement. JH.

Further Response

I have always understood that any application submitted within 12 months of a previous permission for an alternative scheme, subject to the normal provisos, benefits from a ‘free go’. This is the practice at my current authority and neighbouring ones. Reading circular 4/2008 however there seems to be no provision for this in the Fees Regulations and ‘free go’s’ are limited to revised applications following withdrawal, refusal, or non-determination, or where applications relate to the variation/modification of a condition. I would be grateful for your view on this. PS

Further Response

The provision relating to "free goes" following an approval has not been revoked, but paragraphs 83 to 91 of circular 04/2008 do not refer to it, apart from within the context of an application to remove or vary conditions. I am unable to account for this. JH

Paragraph HE6.3 of the recently-adopted Planning Policy Statement 5 states authorities "should not validate applications" that are not supported by an appropriate heritage assessment.  Some colleagues suggest this guidance must be adhered to, so officers could invalidate heritage applications without an assessment. However, I believe to be able to do this, a heritage assessment would have to be a required in the authority’s local validation list. Any clarification would be appreciated. RM.

Paragraph HE6.3 is preceded by the advice, "Local planning authorities should require an applicant to provide a description of the significance of the heritage assets affected and the contribution of their setting to that significance." so I agree with you that the heritage assessment should be a local list requirement for this to apply. JH.

If a householder refuses to allow access to their property for a site visit in connection with a planning application relating to it, what right of entry powers does the council have? GC.

Normally, of course, householders are more than happy to provide access as they want their application determined as soon as possible, but in some circumstances access may be denied, e.g. when the house is tenanted. Section 324 of the Town and Country Planning Act 1990 sets down rights of entry. Powers are granted to enter the land to deal with planning applications (and indeed other types of application such as advertisement applications). The officer must be authorised in writing and, if they are entering occupied property, then 24 hours’ notice must be given. JH.

Under the new arrangements for 'renewals' of unimplemented planning permissions I understand all that is required is the application form and fee. An authority has declined to register such an application as an updated ecological survey is required. Is that permissible? I consider the council should register the application and then, if appropriate, request additional information. What would be the situation if an authority took several weeks to decide to decline registration, so that the original time limit to determine the application was reached? IS.

Paragraph 13 of the government guidance note "Greater flexibility for planning permissions" deals with the need for additional information for these renewal applications and is worth reading. Amongst other things, it states, "Except in cases where there is a need to comply with a statutory requirement in connection with the submission of the application, or a relevant change in policy or other material considerations which post-date the original application, we do not anticipate that any information additional to that which must be provided on the application form will be required in most circumstances." As far as I can verify, however, the legislation supports the authority’s stance. Article 4E of the General Development Procedure Order 1995 sets out the procedure for these renewals and article 5 provides the power for authorities to insist on being supplied with information required in validation lists. Article 5 does say its provisions apply to applications made under article 4E.

Regarding your query about delay in declining to register, the Order says advice that an application is invalid should be given "as soon as reasonably practicable". There does not seem to be a legal sanction to enforce this, but if notice of invalidity was unreasonably delayed, it would be possible for an applicant to make a formal complaint and, if necessary, go on to the ombudsman. JH.

Response

If I remember correctly when the requirement for bat surveys were introduced permissions lasted for 5 years as, presumably, did the survey’s conclusions. It therefore seems unreasonable to require a new survey now after just 3 years unless the authority has evidence circumstances have changed. I have been requested to obtain a new bat survey for such an application despite the original survey from 3 years ago concluding that the 300 year old buildings were not suitable for bat roosts, provided poor quality habitat and had had no extensive use by bats. I think that the authority’s request demonstrates the type of rigid, disproportionate approach to validation that the March 2010 Guidance sought to remove. Incidentally the request from the authority came 22 days after the application was received, but just 2 days after your answer to IS appeared in Planning. What power you have! PW.

Further Response

Obviously this column gets read! I see the use of rigid validation criteria as being an unfortunate consequence of the need to meet 8/13 week targets. As authorities are awarded grants on how they meet these, they understandably "front load" requirements for information as, if it is requested later, that can delay determining an application. JH.

The General Development Procedure Order 1995 provides a definition of "major development" which includes, "the provision of a building or buildings where the floor space to be created by the development is 1,000 square metres or more".  It has been suggested to me that proposals involving the change of use of over 1000 sq m within an existing building constitute major development. Is this correct? SP.

I would not interpret the provision of new buildings, to include the change of use of existing ones. Should there be any doubt on this point, the categories of development for the PS1/PS2 planning application statistics supplied by local authorities to the government which are set out in the same terms do not include changes of use in the major category. JH. 

Response

JH in response to a query from SP (Planning 20 August, p19) states that changes of use are not included within the major category for the purposes of PS1 and PS2 returns.  Could you clarify how a change of use of an area of land exceeding 1ha from, for example, agriculture to the horse keeping, is classified under these returns?  I assume from JH’s statement that they are not classed as a major development.  Please could you also clarify whether they would fall under the major category under the Development Management Procedure Order 2010 therefore triggering the need to advertise the proposal as a major application? EE.

Further Response

I have now realised that my answer on 20 August was not wholly correct. Change of use applications where the proposed end use is "largescale major" or "smallscale major" should be entered as such on the PS1/PS2 returns (the quarterly statistics submitted by planning authorities to the government). Only non-major changes of use should be included in the "Minor developments - change of use" category - I previously indicated that all change of use applications should be classed as minor developments. Thus, provided your horse keeping site was less than 2 hectares it would be a smallscale major application.

Regarding advertising, as I indicated on 20 August, the change of use of a building over 1000 sq m does not need advertising under what is now the Development Management Procedure Order 2010. If, however, a proposal involves the change of use of a site of 1 hectare or more, then that should be advertised as a major application. JH

An application to extend hours of opening and home deliveries for a takeaway to 5am was refused. The applicants have resubmitted solely to extend the home delivery hours to 5am on the basis the council has previously approved a licence to this time. Should any weight should be afforded to the council’s decision regarding to licensing hours.  Is there any case law on this and would the applicant have grounds for costs at appeal? CS.

The Department of Media, Culture and Sport’s " Amended Guidance issued under section 182 of the Licensing Act 2003" states, "The planning and licensing regimes involve consideration of different (albeit related) matters. For instance, licensing considers public nuisance whereas planning considers amenity. As such licensing applications should not be a re-run of the planning application and should not cut across decisions taken by the local authority planning committee or following appeals against decisions taken by that committee. Licensing committees are not bound by decisions made by a planning committee, and vice versa." Planning Policy Statement Note 4 states, "Local planning authorities should manage the evening and night-time economy in centres, taking account of and complementing the local authority’s Statement of Licensing Policy and the promotion of the licensing objectives under the Licensing Act 2003. "Within this context, although there is a relationship between the two powers, especially as you have local objections, it would seem reasonable to refuse the planning application. I consider it most unlikely that the applicants would get costs. Two recent appeals where the relationship between licensing and planning has been considered are DCS nos 100-065-666 and 100-064-913.  JH.

Outline planning permission was granted on appeal for a house for the proprietor of an old people’s home. When the permission was due for renewal, in an appeal against non-determination the inspector considered the application had to be treated as a new one as s73(5) of the Town and Country Planning Act 1990 required this and as the proposal now included basement accommodation which would be occupied by people working in the home. Was this correct? MW.

S51 of the Planning and Compulsory Purchase Act 2004 modified s73 of the 1990 Act to prevent its use for renewing planning permissions. Also, the change to the basement meant that the proposed use was now a composite of dwelling and effectively an annex to the old people’s home, so what was proposed was to be significantly different. Thus, I would endorse the inspector’s approach. JH.

A parish council has applied for approval of details under a planning condition. Some colleagues say that there is a reduction in the fee for this but I disagree. Am I interpreting the regulations correctly? AH.

Whilst paragraph 3 of part 1 of schedule 1 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 provides a half-price concession on ordinary planning fees for parish councils and there is also one for advertisement applications, there is not such a provision for approving details under conditions. JH.

Response

The planning portal fee calculator allows the discount to be applied.  Whilst it is for the planning authority to check the correct fee has been submitted this seems misleading to customers! DB.

Further Response

I have rechecked the legislation and cannot see any authority for a discount for parish councils for approvals under conditions, so as far as I can see the portal calculator is incorrect. JH.

What is the validity of a planning permission if it subsequently transpires the ownership certificates are not properly completed? DD.

Any planning permission granted would still stand unless quashed by judicial review. The case of Main v Swansea City Council 1984 held that in deciding whether to quash a permission, the nature of the irregularity was important. It was stated that when the vires of a decision made with irregularities in ownership certificates the court should have regard to matters such as the identity of the applicant for relief, the lapse of time and the effect on other parties and the public. In that case a small part of an application site was owned by a person then unknown and the correct notification procedure had not been followed. This might have been sufficient for the court to strike down the permission in some cases, but in this instance three years had elapsed and the court exercised its discretion not to do so. JH. 

My company submitted a detailed application for affordable housing but did not submit a fee. It soon became apparent that the application was unlikely to receive consent and we asked that the application be withdrawn. The council, however, has informed us that they must receive the fee before they withdraw the application and that it is not refundable. Is this correct and are we required to pay a fee? SL

Assuming an application is validly made, a fee is payable when it is submitted. Thus, if you do not make the payment, the Council could use debt recovery.

Response

Circular 04/2008 states, "Without payment of the appropriate fee, an application is not valid." (paragraph 94) and, "...payment of the correct fee must happen before an application can be registered." (paragraph 95). Furthermore, the circular states, "Once an application has been registered, the local planning authority cannot go back to the applicant with a demand for a higher planning fee." (paragraph 97. So, either way, if the application did not include a fee, it could not be valid so should not have been registered. If it was registered then it should be assumed the authority considered it exempt from fees. Even it its registration was an oversight, paragraph 97 states that the authority cannot demand a fee. I cannot therefore understand why debt recovery procedures would be justified. TB.

Further Response

Having looked again at Circular 04/2008, I see paragraph 94 states an application without a fee should be returned, though in practice most authorities would save postage and retain it till the fee was received and returning a portal application presents logistical problems! In the light of this advice it would not seem possible to recover a fee in the circumstances described. Thank you for correcting this point. JH.

Two local councils now invalidate applications submitted without a sustainable design and construction assessment carried out by a certified BREEAM assessor with applications for new homes. This is a local list requirement on their validation checklists and they advise that assessment should ensure the dwellings achieve level 3 of the code for sustainable homes. Both councils refer to supplementary planning guidance citing development plan policies and future mandatory requirements for the code. This requirement is not cited in the national list, Circular 02/08 or the government guidance note on application validation. It is onerous, requiring the near completion of working drawings before one can establish the principle of development. We understand we can appeal should an application not be validated. Has anyone else experienced validation difficulties in this regard? KB.

This issue of dwelling being built to level 3 of the code was considered in the context of planning authorities imposing conditions requiring this in Forum last year (Planning, 6 June 2008, p25 and 20 June 2008, p25). It was suggested that such requirements had a tenuous relationship to conventional planning considerations, especially as dwellings will have to be built to level 3 under the building regulations from 2010. Since then, however, conditions have been imposed on appeal in some instances requiring compliance with level 3, including a recent case in Surrey (DCS Number 100-059-292). As you suggest, it does seem unreasonable to "frontload" the requirement for level 3 compliance in this way rather than impose a suitable condition. Unfortunately, however, I can see no way to resolve the issue other than to appeal against non-determination. JH.

How do you calculate the fee for a mixed use development, for example 10 flats and 2 commercial units? Is it the fee for the flats (£3350) plus the fee based on the commercial floor area or is it based on the total floor area of the whole building? ML.

Paragraph 14 of part 1 of schedule 1 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 (as amended) sets out the basis for calculation and it is the fee for the flats plus the fee for the commercial floor area. 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

I am dealing with an application for one 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 therefore contrary to the local plan and will be refused on this basis. However, does this automatically mean 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, yes, 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 seek views on applications, whether in favour or against. Though perhaps the chance is unlikely in this case’s circumstances, if a proposal is not advertised correctly, the applicant could claim this prejudices consideration of their scheme as letters of support might not be forthcoming as a result. JH.

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

Paragraph 48 of circular 04/08 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, "erection of buildings". Certainly a conventional extension to a retail unit would be assessed in this category, no doubt on the basis that a building should include part of a building (though the Fee Regulations do not actually say this) as would an alteration which did not increase floor area like a new shopfront. Notwithstanding this, however, government advice is that mezzanines should be included in category 9.  JH.

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 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 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’. Are they correct bearing in mind 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 often this is 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 in broader terms what is proposed. This is borne out by paragraph 83 of circular 04/2008 saying, "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". Notwithstanding this, 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 the appeal. JH.

A Council has asked for additional information to register an application. They say if the information is not received within 14 days they will assume the application is not being pursued and will return it. This is fair enough. But they then say they will not refund the full application fee paid: they will take a hefty chunk off as an 'administration charge'. Surely this is not lawful? CL

Paragraph 100 of circular 04/2008 indicates that if an application is rejected as invalid the fee must be refunded. I can see no legal justification for an ‘administrative charge’ and, if the application is returned with only part of the fee, an application to the small claims court for the return of the rest would seem likely to be successful. JH

An application was submitted for a mobile home. The site boundary did not include any curtilage land or access. The siting was considered unacceptable so the applicant amended it, resulting in a different site boundary with no overlap to the previous one.  There were then further problems with the application and it was withdrawn.  The applicant now wants to resubmit the application claiming a 'free go' for the fee.  The site boundary is in the position of the amended plan but also includes a curtilage and the access.  The Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 allow the inclusion of additional land for access when using a "free go" but does not mention the inclusion of any other land.  Was the authority correct to allow the site boundary to be amended during the application’s processing and can a free go be claimed if the application site has increased in size? TM.

Dealing with your first question, in Bernard Wheatcroft Ltd v Secretary of State for the Environment 1981 it was held that the correct method of deciding whether amendments to permissions should be allowed was "whether the development permitted is in substance different from that applied for". In exercising this judgement "the main criterion is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation." Whether the amendment was appropriately accepted needs to be considered against this test.

Regarding the fee issue, regulation 8 of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 makes clear that for a "free go" to apply after a withdrawal the application must relate to the same site as the original application and the only additional land that can be included is for a different means of access, so the inclusion of additional curtilage land clearly precludes a "free go". If your client had been entitled to a "free go" it is not clear whether the entitlement should be assessed on the original boundary or the one for the application as amended. The Fee Regulations refer to the "same site as that to which the earlier application related", so I would presume it should be the original boundary, but I am not completely sure on this. JH.

There appears to be a quirk in the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 (as amended). For new dwellings the fee is £335 per dwelling. Where 50 or more dwellings are proposed the fee would be £16,565. When you divide £16,565 by 50 it only comes to £331.30 per dwelling. Why is the figure for 50 dwellings not £16,750? A similar situation exists with new floorspace. Can anyone provide clarification on which fee takes primacy for 50 dwellings and why there is a discrepancy? JP.

Part 2 of schedule 1 of the regulations states the fee for new dwellings, "where the number of dwelling houses to be created by the development is 50 or fewer, £335 for each dwelling house". Thus the fee for 50 houses is 50 x £335, i.e. £16,750. It goes on to say "where the number of dwelling houses to be created by the development exceeds 50, £16,565; and an additional £100 for each dwelling house in excess of 50 dwelling houses, subject to a maximum in total of £250,000". This provision applies when the number of houses exceeds 50, i.e. for 51 or more. If 51 houses are proposed, the fee would be £16,565 + £100, i.e. £16,665, 52 would be £16,765 and so on. This clearly presumes there are economies of scale for councils to deal with larger housing developments. There is, however, an anomaly in that it is cheaper to apply for 51 houses than 50! JH.

I submitted an application to extend the lifetime of a three-year planning permission, having served the requisite notice on the same three adjoining landowners as for the original application. The planning authority validated it. Unbeknown to the applicant, one landowner had sold part of his interest to another neighbour, who has complained that he was not notified. The council now considers the application invalid and, since the three-year period has now expired, the permission has lapsed. Its approach seems to have no regard to whether the new landowner would suffer any prejudice, given that he has already made representations to the authority. Are you aware of any similar cases? JE.

If you have a look at the cases and appeals relating to this issue that are cited in section 6.313 of Development Control Practice, the thrust of these is that a decision can still be made if there has been no prejudice to the party who has not been served with the notice and this seems to be the situation with the scenario that you have set out. On this basis, I consider the planning authority should address the question whether anybody has been prejudiced and I would suggest from what you tell me it could reasonably come to a decision on the application. If they are unwilling to deal with the proposal, you have the options of either submitting a new full application for the development or appealing against non-determination. John Harrison.


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