Q & A 8.2/10
My client owns an access serving his property and a number of others. Permission was granted for a neighbour to demolish his property and build a replacement, subject to a condition that a line of unprotected conifers is retained. It was assumed that these conifers were on that property's land but it has now been established that they are on my client's driveway. What is the status of the condition, and can my client cut down his conifers?
In principle, conditions can be imposed in respect of land within an application site over which the applicant has no control. However, Circular 11/95 advises that, among other things, conditions should be enforceable and reasonable. The fact that it is now known that the condition relates to a matter that is outside the control of the applicant raises obvious difficulties in securing compliance. While enforcement action could be taken against a third party who has not benefited from the permission, such as your client, my view in this case is that it would be likely to fail on the grounds that it would be unreasonable. However, although such action is discretionary, before advising your client to cut down his conifers it would be prudent to obtain a letter from the planning authority confirming that it would not seek to enforce the condition.
A developer proposes to demolish two substantial houses with large gardens and build 6 new units. A similar 'garden grab' plot has just been developed in an adjacent cul-de-sac. This has taken two years to build, involving considerable noise and disturbance to residents, particularly due to the use of pile driving machinery due to poor ground conditions. Can you advise a) whether it could be argued that residents have suffered enough recently from noise and disturbance and that further disruption is unacceptable, and b) whether a non-sustainability case can be mounted on the basis that existing physical building capital, in the form of the existing houses, will be destroyed and, in the construction, additional energy, building materials, travel-miles, etc will be used unnecessarily. JB.
On your first issue regarding construction noise, this can be a material factor in determining a planning application, although I know of no case where it has been upheld as the sole reason for refusal. It is normally reasoned that construction noise is an inevitable temporary, manifestation of any development project, which is not the concern of the planning system unless there would be exceptional amenity harm. When this is the case, a planning condition restricting hours is often applied. In the situation you describe I think that the principle of fair administration would reject an ’enough and no more’ stance, as this would unreasonably discriminate against a developer that happened to come along second.
Your other point raises the interesting issue of whether the demolition of otherwise sound buildings is a matter to be weighed in the sustainability balance sheet. In fact, it rarely arises as a planning consideration, as normally the more efficient use of land brought about by most redevelopments far overrides any argument that it is more sustainable to retain existing buildings. It is also probable that new buildings will be more energy efficient than their predecessors. The only relevant appeal case I have been able to identify concerned a one-for-one house development where an inspector felt that this compromised the aims of sustainable development (DCS Number. 049-304-618). GH.
My local planning authority frequently receives applications for new dwellings, usually flat conversions, where the quality of the accommodation is very poor in terms of floor area, light, outlook, shape etc. Up to recently, it seemed government was content to leave such matters to the market, but recent guidance in PPS3 might seem to suggest that such matters may be given increased weight when refusal is contemplated.. What is your view or the experience of other authorities in this matter? PD.
PPS3 Housing contains no specific reference to internal space standards as a material consideration, and restricts itself to very generalized statements relating to the achievement of high quality and well designed housing. Town planning has always had difficulty in rationalizing how the control of internal space or amenity standards within dwellings is relevant to its conventional environmental and land use concerns. As you say, in the past it has been the government’s approach that such matters are for developers and their clients to decide, although this policy has now disappeared from ministerial advice. However, this stance may still be advanced in appeal decisions. An example is (DCS Number 100-040-276), where an inspector felt that space standards in small units created by conversion were for the property market to determine. However, the inspector added the caveat that this would only be the case where living space did not fall below a "reasonably functional minimum"
Many urban local planning authorities are strongly of the view that no system of public administration should be presiding over the creation of living space which is sub-standard for all the reasons you state. As a result many local plans, or supplementary planning guidance (SPG) made under them, contain specific internal space and layout standards. Consequently inspectors are obliged to give them due weight at appeal, although they may not always accept such standards as prescriptive. An interesting appeal case (DCS Number 100-040-270) saw an inspector reason that SPG internal space standards should be treated cautiously as they did not reflect more recent government guidance that urged better and more effective use of land and higher densities.
My own view is that national guidance is badly needed as to where, in the light of current housing policies, the planning system should set the balance between paternalism and laissez-faire in the control of internal living standards. GH.