Casebook: Development Control Casebook Forum

E-mail your queries, or your replies to earlier queries, to casebook@haynet.com. 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.

NEW QUERIES

The owner of a hot food takeaway is seeking permission to vary a condition to extend its opening hours from 11pm until 1am. The planning authority is minded to refuse permission because of harm to public amenity. However, I argue that the licensing reforms adequately deal with this. If an appeal were lodged, might it be concluded that the authority is attempting to duplicate other controls? PT.

You have touched on a difficult area of planning control. Following the Licensing Act 2003, any hot food takeaway selling food to the public after 11pm is now required to have a premises licence. Although framed in the context of pubs and clubs, the government's 2002 consultation paper on possible changes to the Use Classes Order and temporary use provisions reiterated the general principle that the planning system should not duplicate controls exercised by other mechanisms, such as the licensing regime.

However, this advice was not carried forward into Circular 03/2005, which explains the recently amended order. Moreover, the courts have held that councils and inspectors are entitled to use planning powers to limit opening hours. While these may be more stringent than those authorised under the licensing code, such restrictions must serve a clear planning purpose in protecting local amenities. Inspectors have been inconsistent in their approach to this issue, with many evidently reluctant to impose additional controls beyond those available to licensing authorities. PM.

The owner of a house that has been converted into flats wishes to demolish the original front boundary wall and rebuild it to the same height but in different materials. Presumably this is permitted development, but could can an article 4 direction be served on a building containing flats to restrict any such alterations? AO.

Class A, part 2, schedule 2 of the General Permitted Development Order 1995 only grants permission for a replacement wall of no more than one metre in height above ground level where it does not enclose a listed building and is adjacent to a highway. Article 4(1) provides that a direction may be made to withdraw any permission granted by the order with the exception of those available under class B of part 22 and class B of part 23.

Appendix D to Circular 9/95 explains that article 4 directions should be made only in exceptional circumstances and will rarely be justified unless there is a real and specific threat. Such directions are usually made in conservation areas and I have never come across one that relates to an individual building.

Paragraph 9 of Appendix D suggests that this might be possible in the case of part 1 rights for houses, but only where the house is of a particularly high quality. I think it doubtful that a direction withdrawing rights under part 2 for minor operations to an individual building would be justified. PM.

PREVIOUS QUERIES

In reply to a query last year from MK concerning an authority's erroneous action in issuing a planning refusal on a notice of permission, PM stated that the so-called evidential matrix should be examined to establish the intended outcome (Planning, 16 July 2004, p23).

- In a recently reported case on a similar issue (Planning, 19 August 2005, p18 - DCS No: 10003817), an inspector apparently took a different view and allowed an applicant to take advantage of the authority's mistake on the grounds that it had no powers to issue a revised decision notice.

Surely this is ridiculous and flies in the face of what I thought was the established principle that a valid decision stands on two legs and falls if one leg is absent.

The first leg is a minute showing that the decision was made by a duly empowered committee or officer. The second leg is the decision notice.

In the recent appeal case, the first leg is presumably missing and thus the erroneous decision notice is invalid, since it is not based on a decision made by any duly empowered body. The planning authority realised its mistake and sent out a corrected decision notice.

In my opinion, the appellants' rights are limited to compensation for any extra costs incurred during the interval between the two decision notices if they can show that they were truly misled by the notice, despite it clearly setting out the reasons why the authority considered that the development was unacceptable. What is your opinion? PL.

- The courts have held that it is the actual notification in writing to the applicant that constitutes the grant of permission rather than any resolution of the authority. In the case to which you refer, the planning authority and the inspector agreed that the authority had no powers to issue the second notice. This seems to be supported by the judgement in Fisher v Wychavon District Council (2000).

Instead, the authority argued that the original decision notice was a nullity due to its mistake. As such, in accordance with Slough Borough Council v Secretary of State for the Environment and Oury (1995), it maintained that one was entitled to go behind the wording of the purported grant.

However, the inspector held that since that case concerned the submission of details pursuant to an outline permission and the relationship of the terms of the application to the decision, it was not relevant.

It is true that the courts have ruled that if the validity of a planning permission is challenged on the grounds of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue.

In this case, however, the inspector found no documentary evidence to support the authority's claims that it had intended to refuse the application.

On that basis, he held that the appropriate course of action would have been to consider revoking the decision. Although on the face of it this is a somewhat harsh decision, I do not think that the inspector erred in law. PM.


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