CASEBOOK: Development Control Casebook Forum

New queries

My authority is confused as to whether a material change of use occurs when stables are built on agricultural land for personal use only. We know that permission is required for the stables but are unsure whether a change of use has also occurred. The Land Use Gazetteer states that paddocks are sui generis, therefore any development requires planning permission. But would the erection of stables for domestic purposes and the keeping of horses also require permission? ST.

This area of planning law and practice has caused great difficulty for practitioners. Annex F to PPG7 contains only very limited relevant guidance and it has fallen to the courts and inspectors to clarify matters. The grazing of agricultural land by horses does not amount to a material change of use requiring permission. However, a change of use occurs where land is used for the keeping of non-agricultural horses, unless it is within a residential curtilage and is incidental to the enjoyment of the dwellinghouse.

In that event, permitted development rights under class E, part 1, schedule 2 of the General Permitted Development Order (GPDO) 1995 may apply.

In Sykes v Secretary of State for the Environment (1981), the court held that the distinction between "keeping" and "grazing" depends on whether horses are fed mainly by means other than mere grazing. Whether the keeping of horses will result in a recreational use, a mixed agricultural and recreational use or one that is sui generis is less clear and a matter for debate. Further guidance on horse-related uses can be found in Development Control Practice 23.2. PM.

My client owns a house that was converted in 1989 into two self-contained flats. A planning condition requires these to remain ancillary to the use of the original house and form part of its curtilage to "maintain control over the use of the land". My client now wishes to sell one of the flats with an allocated area of garden. No physical changes to the dwellings or the shared curtilage are proposed. Taking into account the condition, is a sale possible without applying for planning permission? GB.

It is difficult to comment on this without the full facts of the case and sight of the condition. However, the condition does not appear to have been correctly applied originally. Clearly, the flats could not remain ancillary, in the sense of being "subordinate", to the use of the original dwelling, as that use would cease as soon as it was subdivided and there would be no primary use. I also think that the reason given for imposing the condition is vague and meaningless.

Presumably, the intention was to preserve the character and appearance of the area by preventing the creation of a separate curtilage and associated external paraphernalia. Circular 11/95 sets out the tests that conditions should satisfy. In my view, that part of the condition relating to ancillary uses is ultra vires and fails on the grounds that it is unenforceable.

However, it would be prudent to seek to resolve this matter through a letter from the planning authority confirming that it would not take any action or by means of a planning application. PM.

A council has resolved to grant permission for a joint application subject to an agreement under section 278 of the Highways Act 1980 and the applicants meeting its legal costs. I am the landowner. The other applicant, who has no legal interest in the site but has been managing the application, is unhappy with the council's requirements and has walked away. The planning authority is seeking written confirmation from the other party that I can proceed alone but it is unlikely to get it. Does a joint application require both applicants to sign up to everything? SC.

Naturally, it would normally be expected that joint applicants are treated as one. However, my understanding of section 278, as replaced by the New Roads and Streets Act 1991, is that it enables a highway authority to enter into an agreement with any person for the execution of works within the highway and for the making of related financial contributions. While I am not certain, I cannot see why you should be prevented from entering into such an agreement regardless of the wishes of the co-applicant who, being neither a co-signatory nor landowner, would not be potentially liable to enforcement.

However, the co-applicant would of course be denied the opportunity for an appeal against the council's demands. An alternative way forward might therefore be for you to resubmit the application as a sole applicant.

The requirement to meet the council's legal costs in making the agreement is specifically authorised by subsection 278(2)(a). It would be interesting to hear the views of others on this awkward issue. PM.

Do railings above a rear extension of a dwellinghouse require planning permission? I believe that most authorities assess them against class A, part 1, schedule 2 of the GPDO. However, in cases where the property is not a dwellinghouse, I think the approach is to argue that as railings would materially alter its appearance, they require permission, especially where intended to facilitate the use of a flat roof as a terrace. Is this correct? MB.

Railings put up around flat roofs to form balconies or terraces are often considered to have a material effect on external appearance, although in many cases they will be permitted development by virtue of classes B and C of part 1, schedule 2 of the GPDO.

A roof terrace is not permitted by class A, which specifically excludes roof alterations, although it might be argued that the railings enclose a "volume" that should be counted against the available tolerance. However, in an appeal decided in 1987 it was held that balcony railings did not add any volume to a building, while in another in 2000 it was found that the additional volume amounted only to the thickness of the railings themselves.

In London Borough of Richmond-upon-Thames v Secretary of State for the Environment and Neale (1991), the High Court considered whether a parapet wall around the roof of a first-floor extension to a suburban house in Surrey was permitted development.

The judge held that the wall fell to be considered against class B and that, as its volume of no more than one cubic metre did not exceed the relevant allowance, it did not require an express grant of planning permission.

Recommended changes to part 1 in the recent GPDO review commissioned by the ODPM would specifically exclude roof terraces from the order. PM.

- 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

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