CASEBOOK: Appeal cases - Mixed Development - Bid to revive element of old permission rejected

A lawful development certificate seeking confirmation that 32 residential units can be built at a marina in West Sussex has been denied because subsequent changes to a scheme granted permission in 1971 had altered the operator's ability to lawfully implement the development.

The original marina approval allowed 86 "boatel" units - a type of hotel used to accommodate boat owners - in three linked blocks together with a toilet block, floating pontoons, landscaping and boat and car parks.

Permission was granted in 1972 for amendments that involved resiting a restaurant and revisions to the toilet block. These were implemented, thereby keeping the 1971 permission alive.

A further permission in 1998 sanctioned a chandlery and diving shop on part of the site proposed for the boatel units. However, the appellant argued that there were no material impediments to carrying out the original approved development, since the 1971 permission had been partially implemented but not completed.

Citing Pilkington v Secretary of State for the Environment and Others (1973), the appellant maintained that the critical consideration was whether the construction of the 32 boatel units was a practical possibility. The 1971 permission, the appellant asserted, did not relate to a single entire building but to a maximum of 86 boatel units that could be constructed in three blocks linked by corridors. On this basis, he claimed that the erection of 32 units within the central block would be lawful.

Although accepting that other development had occurred within the area affected by the 1971 permission, the appellant maintained that, in accordance with Prestige Homes (Southern) Ltd v Secretary of State for the Environment and Shepway District Council (1992), a clear distinction could be drawn between the physical impossibility of implementing a subsequent planning permission and its mere incompatibility with another partially implemented permission.

The council claimed that the boatel element of the 1971 permission could not be severed from the permission. It argued that the 1998 permission for the shop and chandlery, which had subsequently been erected on a part of the site that was originally intended to be occupied by some of the boatel units, meant that the construction of only 32 of the units would not accord with the original approval.

The council asserted that, in accordance with Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment (1985), later inconsistent permissions had been taken up and that cumulatively these rendered it impossible to rely on the 1971 permission because access and parking considerations had changed in the meantime. In effect, it claimed, the proposal would be tantamount to erecting the units without the remaining two blocks or any of the associated and ancillary development.

The inspector concluded that the boatel element was indissoluble from the car parking, landscaping and access arrangements approved as part and parcel of a comprehensive scheme in 1971. The 1998 approval meant that only two of the three blocks were physically capable of implementation, he ruled. In his view, this was a fundamental change and to grant the LDC would enable the construction of the central block, thereby representing an even more fundamental departure from the original permission.

DCS No: 39221854; Inspector: Peter Rosson; Inquiry.

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