Flats Q & A DCP Section 7.4

This section discusses proposals for flats comprising 10 or more units of accommodation. The schemes may involve either the demolition of existing property or the development of open land. Smaller scale urban flat proposals are found in chapter 8 with suburban plot subdivision at (8.1), housing redevelopments at (8.2) and conservation area developments and redevelopments in tighter urban circumstances are covered in (8.3). Smaller scale rural flat proposals are covered in chapter 9. Conversions of large houses to flats are found at (11.1). Housing estates are covered in (7.1), retirement housing is dealt with at (7.2) and the provision of affordable housing issue in relation to all types of housing is dealt with at (7.3). Extensions and alterations to flats can be found in Chapter 12.

Q&A    7.4/10

My local authority has recently permitted replacement uPVC windows to an unlisted block of flats, but on condition that some existing windows which do not form part of the approved scheme must be painted white to match. Is this a valid condition?

It is frequently required that materials of a new addition to a building match the existing, and of course this presents no problem in satisfying the relevancy criterion in Circular 11/95. The other way about, as posed in your unusual example, I would have thought that the same legitimacy would apply, there being a clear planning objective to maintain the visual coherence of a building. However, if the other windows required to be painted white are not in the applicant's control, such a condition would certainly fail on enforceability grounds and would therefore be ultra vires.

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?

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.

Newly-built flats have been occupied without the car parking required by a condition of the permission, resulting in complaints of increased on-street parking. My department has asked for a Breach of Condition Notice (BCN) to be served requiring the provision of the approved parking, but not the cessation of occupation. This is a practice we have adopted in the past with no difficulties. However, our solicitor is concerned that a BCN would make the continued occupation of the flats unlawful, potentially breaching Article 8 of the Human Rights Act, and therefore recommends that future conditions omit the words "the dwellings shall not be occupied until". As most planning authorities adopt such wording in accordance with the model conditions in Circular 11/95, if the solicitor's view is correct, surely this has wide-ranging implications?

Article 8 of the Human Rights Act 1998 confers the right to respect for private and family life and for the home. In deciding whether there has been a breach of this Article, it would be necessary for the Court to consider whether a fair balance has been struck between the rights of the individual property owner and society as a whole: a claim can only succeed if the interference in the right of the individual concerned is not outweighed by the public interest. To date, this has happened very rarely.

In my view, your solicitor seems to be adopting an over-cautious approach and I am not aware of any specific legal authority that would support the action recommended. Unless this is based on such a precedent, in my view you should continue to follow the wording suggested in the model conditions set out in circular 11/95 until such time as any revised guidance is issued to take account of any issue arising from human rights legislation. I think that to do otherwise would seriously prejudice your authority’s ability to secure compliance with this type of condition.

Response

I was interested in your response to the query by ST relating to flats had been occupied without compliance with a condition requiring parking facilities prior to occupation (Planning 20 February 2004, p25). The question was asked whether a Breach of Condition Notice would breach Human Rights legislation.

My understanding (apparently confirmed in an article in the same edition which reported on a recent RTPI Yorkshire Branch Conference) is that if a pre-condition has not been complied with, then this makes the whole development unlawful.  It would therefore not be possible to serve a Breach of Condition Notice as the conditions themselves would no longer be enforceable. It would only be possible to secure compliance through an enforcement notice or injunction. In such circumstances the Human Rights abuse must rest with the developer, permitting occupation without compliance with a pre-condition, thus rendering those occupiers liable to such action.

A client of ours was granted permission in 2004 for a block of 14 flats, comprising 8 x 1 beds and 6 x 2 beds. Although the description of the development refers to the numbers of units the permission was not subject to any section 106 agreement, and all conditions related to submission of details only. Our client is now to start works but would like to change the top two flats to a single penthouse, and alter the two bed units to one bed units. Would these alterations require a fresh planning application?  It is our understanding that the loss of units does not constitute development unless it is considered a material change of use which has planning consequences, such as the council establishing a problem with the insufficient number of small units. In this case, however, there are no policies preserving smaller units. FC.

I assume the permission granted followed an outline application and that the conditions applied related to the submission and approval of the normal reserved matters. In that case the question is whether a reserved matters application, incorporating the unit changes you describe, may be made within the ambit of the original outline permission. On the face of it, the altered unit sizes do not seem to be anywhere near significant enough for a local authority to aver that a fresh application is required. They appear not to pose any different amenity or policy issues than would have been apparent at the outline stage. Neither do the unit changes seem to raise any matters which need to be the subject of fresh consultation procedures. GH.

I Act for objectors to a proposed apartment block that would be overlooked by upper-floor balconies. The drawings show that the balconies would have 1.5m high obscure glass screens. I fear that future occupiers might replace these with clear glass or remove them altogether, with obvious harm to their neighbours. If permission were granted without any specific reference to these screens, would permission be needed to modify or remove them? If a condition is imposed requiring the screens to be maintained as shown on the plans, would this be enforceable?

Although flats do not enjoy permitted development rights, alterations to the balconies some time after the building is completed may not involve development if its external appearance as a whole is not materially affected. So the most prudent course of action would be to request imposition of a condition to expressly require that the screens be maintained at a specified height and fitted with obscure glass. Provided this is worded precisely, I see no reason why it should not be enforceable.


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