CASEBOOK: Development Control Casebook Forum

Send your queries or your replies to earlier queries to: Development Control Casebook Forum, Development Control Services, Suite 1, Fullers Court, Lower Quay Street, Gloucester GL1 2LW. Alternatively, fax them to 01978 869355 or e-mail them to casebook@haynet.com.

NEW QUERIES

We are dealing with a case where decking up to about 1.9m high has been erected across part of a very restricted domestic rear garden and is causing problems for the neighbours. As the decking is less than 2m high, is it permitted development or does it count as an extension to the dwellinghouse?

Similar questions have been raised before. In recent cases, inspectors have considered that decking physically attached to and projecting from the rear wall of a dwelling and creating a measurable volume is a structure that may be considered to fall within part 1, class A, schedule 2 of the General Permitted Development Order (GPDO) 1995. In other cases, decking may fall within class E and is subject to the limitations set out thereunder.

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 can be taken against a third party who has not benefited from a 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, 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.

My council has recently received a glut of applications for large-scale housing developments on windfall sites. Each probably conforms to relevant policy guidelines, but as they do not relate to any development plan allocation or development brief there has been no plan-led assessment of the cumulative traffic impact. The highways engineers advise that if a number of these developments proceed, the highway network will become overloaded. Should the applications be considered on a first-come first-served basis or in order of receipt of sufficient information to demonstrate their individual acceptability? Or should the council approve those that secure the greatest environmental or regeneration benefits?

While the planning system usually works on a first-come first-served basis, it seems to me that there would be merit in prioritising these sites according to their size and impact on the highway network but within the context of an assessment of their suitability and potential against the criteria set out at paragraph 31 of PPG3. Readers' views and experiences are invited on this interesting dilemma.

A planning authority has refused to register our application unless we remove a note saying "Do not scale" from our drawings. The drawings are at 1:100 and have key dimensions written on them. We feel that removing the note opens our client to challenge if there is a minor variation in the final building. Our offer to submit further drawings annotated with additional specific dimensions has been rejected. Is the authority justified in refusing to accept the application?

This was the practice of an authority with which I once had some dealings. My recollection is that the requirement to remove the note stemmed from an enforcement case in which it was held that it effectively prevented the authority from taking such action, as the drawings could not be relied upon to illustrate the approved development accurately. However, I have been unable to find the relevant case. Perhaps a reader from an authority that operates such a practice will remind me.

There is no statutory requirement for drawings to follow any prescribed manner. Planning authorities have discretion to determine what details are necessary in order for an application to be considered valid. Most have adopted the checklist in the DETR publication By Design, but this is silent on the subject of your concern.

In my view, it is right to insist on scaled drawings from which accurate measurements may be taken without an applicant hiding behind some caveat emptor clause. This simply undermines the purposes of the planning process.

Minor departures from a permitted scheme are unlikely to result in enforcement action and may be dealt with as an amendment to the permission.

My council is currently debating whether rear roof extensions that project out onto "back addition" roofs fall within class A or class B of the part 1, schedule 2 of the General Permitted Development Order 1995. I think many councils treat most extensions that creep along the roof of the rear addition as roof extensions. Is this correct?

All extensions involving roof alterations either fall within class B, covering roof enlargements, or other roof alterations under class C, depending on whether there is a material alteration to the shape of the dwellinghouse.

PREVIOUS QUERIES

In your reply to the query about safeguarding an extant permission for redevelopment of a haulage yard for housing while preserving the existing use (Planning, 10 October, p27), it seems to me that your view cannot be correct. Even the digging of a trench must be considered a building operation. Once the permission has been implemented, the haulage use becomes unlawful. It is not possible for the two uses to co-exist. It would also be useful to know whether any conditions attached to the permission affect my view on this.

I agree that generally the effect of implementing a planning permission will be to overlay and thereby extinguish any existing use. Your comment about conditions is also correct, in that it is possible that these or indeed a planning obligation could require the removal of an existing use. However, I am not persuaded that in some circumstances a case cannot be made for the scenario I postulated.


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