Forum: replacement dwelling query

Q Planning permission was granted for a replacement dwelling in the green belt, with the new dwelling on a different part of the site from the original one...

...The plans were annotated "Existing dwelling to be demolished when new dwelling complete". The developers now say that because no condition was imposed requiring demolition of the existing dwelling, they are not obliged to take it down. Is this correct? AS

A One should have regard to the entire permission, comprising the plans, the description of development and any conditions attached to the decision notice. The local authority may have fallen into the trap of relying on a condition that requires the development to be carried out "in accordance with the approved plans". However, without a specified time limit for completion, the developers can claim that they have not yet "completed" the development, since any outstanding parts of the permission remain extant in perpetuity. With no enforcement mechanism available, the planning authority cannot enforce the demolition of the original dwelling. Chris Nash

A I would agree. Development Control Practice 9.461 confirms that a condition should be imposed in such circumstances. As no condition was imposed on the planning permission requiring the demolition of the original dwelling within, say, three months of first occupation of the new one, no enforcement remedy exists, so getting the original dwelling removed would involve paying compensation. Applicants’ stated intentions, such as proposed operating hours for a restaurant or, in this case, an intention to demolish the original house, cannot be relied upon. To be enforceable, such statements have to be "reinforced" through a planning condition. John Harrison

Next questions

Should planning applications be made when archaeological excavations are being proposed? WM

Q I am considering buying a house that was converted into two flats about 15 years ago without planning permission being obtained for the conversion. It has no lawful development certificate. Is it possible for me to buy the property and then make an application for the certificate? NL

Please send answers or comments to casebook@ by Tuesday 20 December. We also welcome readers’ new queries via the same address.

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