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

Do applications for petrol filling stations require environmental impact assessments?

Filling stations are not listed in the categories of development under schedule 1 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 for which an assessment is mandatory in every case. So it is necessary to consider the proposed development against the provisions of schedule 2.

This requires an assessment where a development is likely to have significant environmental effects due to specified factors relating to its size, location and character. The selection criteria for determining whether a development would have a significant environmental impact are set out in schedule 3 and relevant guidance is given in Circular 02/99. But unless it is part of a motorway service area or a much larger retail development, a conventional filling station would not normally require an assessment.

My authority is considering a lawful development certificate (LDC) for the demolition of one of a pair of attached garages straddling the boundary between two houses. The garages stand apart from the dwellings and are covered by a pitched roof. The demolition would leave the remaining garage with a mono-pitched roof. The applicant has not explained the reason for the proposal and argues that it is permitted under part 31 of the General Permitted Development Order 1995. However, it appears that the authority's prior approval would be needed. Can my authority grant an LDC?

As explained in annex 8 to Circular 10/97, section 193 (5) of the Town and Country Planning Act 1990 provides that an LDC shall not affect any matter constituting a failure to comply with any condition or limitation subject to which permission has been granted, unless that matter is described in the certificate.

While the proposal appears to be permitted development and your authority may issue an LDC confirming that its permission is not required for demolition, this would not override the requirement for the householder to comply with conditions set out at paragraph A2 of part 31. These include the need to apply for "a determination as to whether the prior approval of the authority will be required to the method of demolition and any proposed restoration of the site", rather than prior approval as such.

A local planning authority requires the full name and address of an applicant on its application form, even when submitted by an agent. It claims that under article 25 of the General Development Procedure Order (GDPO) 1995 this is necessary in the interests of transparency and to enable proper consideration. It adds that failure to provide this information may render the application invalid through "procedural uncertainty". I argue that this is neither a national requirement nor relevant when determining an application. As such details are now published on the internet, I am anxious to protect my client's identity. Is the authority entitled to refuse to register and determine an application for this reason or to sell this information on to third parties? NW.

At present there are no national requirements for application forms, although a standard form is expected to be introduced in April 2006. In the meantime, section 62 (3) of the Town and Country Planning Act 1990 entitles authorities to require an application for permission to include such particulars as they deem necessary.

By virtue of regulation 3(1)(b) of the Town and Country Planning (Applications) Regulations 1988, these include the particulars specified in the form.

If the form stipulates that the name and address of the applicant must be identified and this is not done, the authority is able to declare the application invalid under article 5(4) of the GDPO.

Except in the case of applications for LDCs, article 25(6) does not explicitly require the planning register to include the name and address of an applicant for permission. But this seems a reasonable requirement and there may be procedural implications in assessing the application against provisions relating to exemptions from fees and so forth.

As far as the merits of the proposed development are concerned, I agree that in most cases the applicant's identity will be irrelevant. I have no knowledge of an authority's rights to sell on details of applications to other parties. Can any reader help?

PREVIOUS QUERIES

In response to JJ's query concerning the calculation of application fees for wind farms, JG explained that her authority had been advised that the ODPM is researching this matter (Planning, 4 November, p23).

- My authority takes the same view as JG's. To ensure that it would receive a payment commensurate with the nature of the proposal, it includes the whole of the curtilage of a wind farm in its application fee calculation.

It is understandable that certain developments associated with a wind farm could be omitted from the site area, either inadvertently or otherwise, thus resulting in a lower fee being payable than is required under the regulations.

However, the deliberate inclusion of agricultural land that is not part of a wind farm just to increase an application fee seems dangerous. It would be interesting to know whether there would be any grounds in such circumstances for a complaint of maladministration once a fee had been paid and agreed between the applicant and the authority. Hopefully the ODPM will provide some clarity on this issue.

- As Circular 31/92 points out, the regulations provide that refunds may be made at any stage for any sums not required by the regulations.

In the event of any dispute over fees, the proper course is for the applicant to appeal against non-determination of the application. The matter will then be considered by the Planning Inspectorate, which must decide whether the secretary of state has jurisdiction to determine the appeal.


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