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 recently submitted an outline planning application for residential development. The red line was drawn around the application site and a new vehicular access and the appropriate notices were served on the landowners.

The planning authority has said that proposed junction improvements to the existing highway must also be included within the site. I have always understood that these works could be dealt with by a section 278 agreement under the Highways Act 1980. What are your views?

I am not entirely clear why a planning authority should insist on such a requirement particularly since, as you say, section 278 enables an agreement to be made for works within the public highway. I assume that the authority considers that by doing this it would retain greater control over the development by enabling it to impose certain precedent conditions, although the effect of these can normally be achieved through a Grampian-style condition. Can any reader clarify the possible reasons for the authority's stance?

Class E, part 1, schedule 2 of the General Permitted Development Order (GPDO) 1995 differentiates between permitted development height limits of 4m for a building with a ridged roof and 3m for others. Would the definition of "ridged" include a mono-pitched roof slope where the "ridge" would have its junction with a wall rather than another roof slope?

I can find no case where this matter has been tested. However, in the circumstances that you describe, it would seem difficult to argue that a single-plane roof is a ridged roof within the dictionary definition.

The Concise Oxford Dictionary defines a ridge as the "line of junction of two surfaces sloping upwards towards each other".

A planning authority has refused to accept a unilateral obligation to secure local needs housing occupancy in perpetuity. Instead, to maintain consistency and protect its interest, it requires a section 106 agreement for which it is seeking a payment of £500. Is it justified in doing this?

Advice on the proper use of planning obligations is set out at annex B of Circular 1/97. This explains that it is reasonable to expect developers and authorities to seek to resolve any planning objections by agreement, but that where a developer considers that negotiations are being unnecessarily protracted or unreasonable demands are being made, a unilateral undertaking may be offered. This will usually happen at appeal.

A planning authority is not bound to accept any unilateral obligation.

I can see why in most circumstances it would prefer its own wording for an obligation, especially if this has been tried and tested before. The requirement to pay the authority's costs for drawing up the agreement does not appear to be expressly authorised by the Town and Country Planning Act 1990, but in my view this is reasonable and is certainly common practice.

There is a right of appeal against the authority's failure to accept the undertaking. However, if you are not willing to enter into the obligation by agreement with the authority, one possibility might be to seek its views on a draft unilateral undertaking prior to its execution. But in that event, you might perhaps just as well go the whole hog.

A planning condition relating to a new dwelling requires a visibility splay over my client's land, which lies outside the application site, but is not worded in the Grampian style. Because of this, the absence of any related legal agreement and the need for my client's wall to be lowered, the splay was not provided. My client thinks that his compensation rights for the affected land have been denied. He has served a purchase notice on the authority but this has been rejected as invalid because it relates to land beyond the application site. Is this right and what recourse is open to my client?

The purchase notice system provides a remedy for owners of land left without any reasonably beneficial use following a planning decision, including a grant of permission subject to conditions. Section 137 of the Town and Country Planning Act 1990 details the circumstances in which a notice may be served requiring a local authority to purchase the land.

Policy advice in Circular 13/83 explains that a purchase notice must relate to the same area of land as that subject to the planning decision.

It therefore follows that your client's notice was invalid. Where an authority refuses to accept a notice, it must be referred to the secretary of state for consideration, although this procedure may only apply to valid notices.

However, I fail to understand why your client believes that the land in question has been deprived of any reasonably beneficial use, especially as the condition appears to be ultra vires and incapable of enforcement because it relates to land outside the application site and beyond the applicant's control. Had it been a Grampian-style condition, then clearly the applicant could have been enforced against, in which case the value of your client's land would increase. Reference should also be made to paragraphs 37 to 39 of Circular 11/95 on the reasonableness of such conditions.

PREVIOUS QUERIES

Further to MB's query about roof terraces (Planning, 21 November, p21) it should be noted that in the case of R v London Borough of Camden ex parte Cousins (2002), the judge held that the erection of iron railings above a flat roof could not be regarded as an enlargement of a dwellinghouse consisting of an addition or alteration to its roof under class B, part 1, schedule 2 of the GPDO but fell instead to be considered under class C.


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