Casebook: Development Control Casebook Forum

E-mail your queries, or your replies to earlier queries, to Alternatively, post them to Development Control Casebook Forum, Development Control Services Ltd, Suite 1, Fullers Court, 40 Lower Quay Street, Gloucester GL1 2LW or fax them to 01978 869355.


What is the correct legal procedure for copying approved plans from a planning application file after the application has been determined? Some authorities are willing to provide photocopies of all plans but others refuse, citing copyright laws. My understanding is that these allow any material open to public inspection to be photocopied. Is this true? MH.

Section 47(2) of the Copyright, Designs and Patents Act 1988 provides that planning authorities may allow the copying of material "open to public inspection pursuant to a statutory requirement", including "for the purpose of enabling the material to be inspected at a more convenient time or place". This appears to have been interpreted by many authorities as meaning that plans may only be copied to allow third parties to comment on an application before it is determined.

However, since it is also a statutory requirement under the Local Government (Access to Information) Act 1985 that planning application files be made available for public inspection after an application has been decided, I see no reason why authorities should not permit plans to be copied at that time. Section 46 of the 1985 act expressly provides that copyright is not infringed in relation to anything done for the purposes of a statutory inquiry. So if the copying of the plans is to be used in evidence for a future planning appeal inquiry, this is permissible under the legislation.PM.

My client has occupied a building for office purposes for the past ten years and intends to regularise this through a lawful development certificate (LDC). Earlier this year he vacated the building for refurbishment works lasting eight months. He intends to reoccupy the building soon. Is the discontinuity of office use likely to be fatal to his application for an LDC? NT.

The courts have held that a lawful use can continue to subsist as an "existing use", even though dormant or inactive, unless it has been abandoned or supplanted by a materially different use. In addition, short periods of inactivity in connection with an unlawful use may be considered to be a continuation of that use, although longer periods may not.

If the ten-year immunity period was achieved before the building was refurbished, the lawfulness of the use would be unaffected. Equally, in the event that the eight months is required to count towards the ten-year period, I think it very unlikely that this would be considered to constitute a sufficiently material interruption in the existing use to harm your client's application. PM.

My authority no longer validates applications that meet English Nature's screening criteria unless a bat survey has been carried out in the recent past. Previously it applied conditions requiring surveys to be carried out after permission has been granted. However, following R v Cornwall County Council ex parte Gwennap Parish Council (1999), where this approach was discredited, the non-validation route is now taken. The authority takes a similar view on certain applications lacking flood risk and traffic impact assessments. If it did not, this would have a serious effect on the eight-week target figures and the planning delivery grant. Are we legally able to do this? WT.

Section 62(3) of the Town and Country Planning Act 1990 provides that local authorities may require an application for planning permission to include "such particulars as they think necessary" and "such evidence in support of anything in or relating to the application as they think necessary". Except in the case of outline applications, this may be required by a direction under regulation 4 of the Town and Country Planning (Applications) Regulations 1988.

By virtue of article 5(4) of the General Development Procedure Order 1995, an authority is entitled to consider that an application is invalid due to failure to comply with such a direction. This is reinforced by best practice guidance on the validation of planning applications issued in March, which withdrew the advice in Circular 9/95 that an applicant's failure to respond to a direction does not invalidate the application, so your authority's approach is justified.

Advice on ecological surveys is set out at paragraph 99 of Circular 06/2005.

This makes clear that the presence of protected species and the extent to which they may be affected by a proposed development should be established before permission is granted. PM.


JJ queried how planning application fees for a wind farm should be calculated (Planning, 21 October, p27).

My authority is expecting around five wind farm applications in the next six months and contacted the ODPM to seek clarification on fees. It advised that while there are no central guidelines on how wind farm fees should be calculated, it is currently carrying out a research exercise with a number of authorities that have dealt with such applications to find out how and at what level fees are set.

There appears to be a consensus that the site area should be used and that such applications fall into the category of plant and machinery, which is category 5 in the fees schedule. According to the ODPM, the fees charged by authorities differ because the extent of the red line can vary and it is really for the authority to decide what determines the site area and whether to include or exclude roads and other plant.

Once the research is finished the ODPM may provide advice in the revision of the fees circular if it seems necessary. In the meantime, my authority intends to include the curtilage area of the fields in which the turbines would sit in order to secure a fee that is commensurate with the complexity of such applications and to ensure that the detailed siting of turbines is covered within the red line. Another concern is the mixture of Electricity Act and planning applications expected, since applications to the DTI do not require any payment of fees to the authority at all. JG.

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