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

You reported a decision where an inspector imposed a condition requiring the applicant to enter into a section 106 agreement. I am aware that some planning authorities are taking this approach to speed up decision-making. But Circular 05/2005 on planning obligations specifically warns against this. What is your view?

The circular repeats the advice in paragraph 13 of Circular 11/95 that permission cannot be granted subject to a condition that the applicant enters into a planning obligation under section 106 of the Town and Country Planning 1990 or an agreement under any other powers. However, circular advice has no statutory force, so such a condition is not necessarily unlawful.

In the case you mention (Planning, 21 October 2005, p25 - DCS No: 100038941), the inspector noted that another authority had followed this approach in a recent permission. He agreed that since there was a clear basis for the amount of the financial contribution required, the matter could be dealt with by a Grampian-type condition.

He also noted that a suggested form of wording could be found in a respected source - an article in the Journal of Planning Law last year. This postulated that there was no reason in principle why an appropriately worded condition preventing a development from being implemented until an obligation had been made and approved by the planning authority in respect of specified requirements should fail the legal tests established in Newbury District Council v Secretary of State for the Environment (1981) and explained elsewhere in government guidance.

Because of the conflict with paragraph 13 of Circular 11/95, the article's author acknowledged that while this form of condition has been used before, it is still somewhat novel and has not been tested in the courts. There is therefore a risk that it would be found unlawful. Until this happens, I see no good reason why authorities should not continue to consider this approach.

It is becoming quite common for people to acquire a field for recreational purposes such as riding off-road motorbikes at weekends. However informal, I would regard this activity as being "practising for motor racing". In that case, the 14-day limit under the General Permitted Development Order 1995 would apply. But I note that ODPM guidance and case law indicate that such activities do not constitute "practice" and therefore the 28-day limit applies. Do you agree?

Class B, part 4, schedule 2 of the order restricts "motor car and motorcycle racing, including trials of speed, and practising for these activities" to 14 days in any calendar year except in sites of special scientific interest. This has been interpreted as covering competitive motorsports events, including race practice sessions. However, other temporary uses of land for non-competitive motoring activity, including informal practising or training, are subject to the 28-day rule.

A clear distinction is therefore made between these activities, which have materially different effects. The use of a field that is otherwise used only for agriculture by people on an individual basis for riding off-road bikes should not be regarded as practising for racing. This opinion is consistent with government advice and recent appeal decisions, including one from 2003 involving a motocross circuit in Leicestershire (DCS No: 31835572).

PREVIOUS QUERIES

In reply to a query from WT (Planning, 4 November, p23), PM agreed that a planning authority could treat an application where a bat survey was required but had not been provided as invalid.

- PM has confused regulations 3 and 4 of the Town and Country Planning (Applications) Regulations 1988. Regulation 3 states that an application must be made on a form provided by the local planning authority, include the particulars specified in that form and be accompanied by plans and drawings necessary to identify the site and the development. Three copies of the form and drawings must be provided. If the applicant does this, the application must be validated.

Regulation 4 allows the authority to direct the applicant to supply any further information that is reasonable to allow it to be considered. If this is not done the application may not have to be determined. In my view, articles 5(2) and 5(4) of the General Development Procedure Order (GDPO) 1995 make it quite clear that, with the exception of Crown land, the only other requirement for an application to be valid is the receipt of the correct fee.

If the application does not proceed, it can be appealed as a deemed refusal because it must have been validated under regulation 3. In at least one quite recent decision, an appeal was determined by the inspectorate even though the authority failed to validate the application because in its view it was incomplete. The ODPM best practice guidance referred to by PM is incorrect on some of these validation issues.

- I stand by my advice. Article 5(4) of the GDPO expressly provides that where an applicant fails to comply with the requirements of either regulation 3 or "any other statutory requirement" - which would include a direction made under regulation 4 requiring the submission of further information - the planning authority "shall as soon as practicable notify the applicant that his application is invalid".

Any doubt has been removed by the cancellation of the second sentence to paragraph 88 of Circular 9/95, as explained in my reply. The government has also stated its intention to amend the GDPO to remove any legal ambiguity over an authority's ability to declare any application that does not meet its requirements as invalid. Although there is currently no obligation to do so, these should be set out in a supplementary planning document in the form of validation checklists, in accordance with ODPM best practice guidance. Such documents would provide greater certainty and openness.


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