Material operations with ambivalent purpose held not to commence permission

A Worcestershire council's decision to refuse to grant a lawful development certificate confirming implementation of permission for a replacement riverside house was upheld by an inspector.

200-007-037 (Image Credit: Malvern Hills DC)
200-007-037 (Image Credit: Malvern Hills DC)

Following flood inundation, the council had granted permission in 2013 for a replacement dwelling with a considerably raised floor level, followed in 2015 by a variation permitting a small adjustment in siting. The appellants claimed that material operations had taken place which lawfully commenced the development before it expired in 2016.

The appellants had also established a flourishing rowing club on land in their ownership on the other side of a road bridge, without permission. The inspector concluded that some of the material operations referred to had been for the purpose of providing facilities for the club. For example, a sewage treatment plant with capacity to serve up to 22 people was clearly excessive for a five to six-bedroom house. These and other operations, such as service duct moling and a gravel hardstanding, were not expressly permitted by the consents, and while case law establishes that deviation from approved plans need not be fatal, the works had another non-residential purpose and so the inspector concluded they were not related to the implementation of permissions for a replacement house. She also noted some of the works had taken place on land close to the rowing club and outside of the site benefitting from permission for a replacement dwelling, and were unauthorised works that could not be relied upon to demonstrate lawfulness in any event.

The inspector further concluded that, even if she had accepted the appellant’s view that these material operations were to facilitate the proposed house, the works were unlawful because they had taken place before the discharge of conditions precedent that went to the heart of the permission, including a requirement to agree ground floor levels before site work could commence in the functional flood zone.

Inspector: Sukie Tamplin; Hearing


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