Raised open space found not to be part of planning permission

Enforcement action against a substantial mound in place of an area of informal open space within a permitted housing development in Greater Manchester was upheld by an inspector.

The approved plans for the housing estate identified a local open space but the land in question had been built up into a substantial mound of material with relatively steep sides rising to a central plateau covered with grass and planting.

The appellant argued that no breach of planning control had taken place as the council did not impose any conditions requiring the open space to be flat or the submission of details on land levels. Referring to the approved and indicative plans to assist in interpretation of the permission, as established by the courts, the inspector was satisfied that these clearly indicated that the appeal site was largely level when the application was made and intended to remain so. She observed the lack of a specific planning condition does not enable works that were not part of the approved plans or required to implement the planning permission, and decided that the works did not fall within the scope of the planning permission. The inspector disagreed with the appellant that R v Basildon DC ex parte Martin Grant Homes 1987, in which finished levels varying from those shown on the original application plan were held to be incorporated in the full permission, assisted their case as it differed significantly from the appeal.

Turning to the deemed application, the inspector concluded the mound stood out as an incongruous feature that dominated its surroundings and affected its usability by residents as an open space. The retention of the development, albeit at a reduced height, would not remedy the breach of planning control and she refused permission. Finding the appeal had failed other than an extension of time under ground (g), she upheld the enforcement notice.   

Inspector: Debbie Moore; Written representations

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