DC Casebook: DC Forum

Email your queries or your replies to earlier queries to casebook@haymarket.com or post them to Development Control Casebook Forum, DCS Ltd, Casebook Suite 1, Fullers Court, 40 Lower Quay Street, Gloucester GL1 2LW. Comment and post at PlanningResource.co.uk/forum/dc

NEW QUERIES

More and more planning authorities are using a reference to "the Sage case" to instigate a system under which no minor amendments are considered to planning approvals, with all such changes requiring a fresh application. I know that this is incorrect, but can we have a learned response on the matter to thrust under the noses of these misinformed pedants? AL.

A remark made in the House of Lords judgement in Sage v Secretary of State for the Environment, Transport and the Regions [2003] has indeed led some local authorities to aver that any deviations from approved plans will require a fresh permission. However, others have held that because the remark did not relate to the substance of the case before the law lords, which was actually concerned with the meaning of the term "substantially completed", it cannot be binding.

The recent planning white paper (Planning, 25 May, p2) confronts this problem. It proposes to allow minor amendments to be made to a planning permission without the need for a fresh application. It recognises that "recent case law", which one assumes to be Sage, has been interpreted by many as restricting the potential for developers and planning authorities to agree between themselves about the appropriateness of amendments to a scheme that has already been approved.

The white paper continues: "This leads to a situation where developers need to submit a further full planning application to make relatively small changes to how a development is delivered, resulting in delay, uncertainty and cost for the developer, additional work for the local authority and often unnecessary further consultation with stakeholders."

The approach suggested in the white paper is to amend primary legislation so as to allow the local authority the discretion, at the request of the applicant, to vary an existing permission where it considers that the change sought is not material. This is in fact the situation that prevails in Scotland. GH.

I am dealing with a building in Wales that has a large parking area within its curtilage. The entire premises formerly had an established use for car sales, which we know is a sui generis use. The property is now used for class A1 shops and the car park is available for their customers. I understand that such a change of use was previously permitted development, but has the law changed? PL.

Class A, part 3, schedule 2 of the General Permitted Development Order (GPDO) 1995 used to give permitted development rights for a building used for the sale or display of vehicles to become a class A1 use. In the light of several instances where this right was exploited to convert car showrooms into large retail outlets, the GPDO was amended in 2005 to remove it. In England, such a change of use could only have enjoyed permitted development rights if it took place before 21 April 2005.

If the change of use occurred after that date, it would need to be decided whether a material change had occurred from the previous sui generis vehicle sales use to a retail use. In practice, this is very likely to be the case. However, these legislative changes were not introduced in Wales and so the rights granted by the 1995 order still apply in the case with which you are dealing. GH.

Could you please confirm whether keeping and breeding llamas constitutes an agricultural use as defined by section 336 of the Town and Country Planning Act 1990? My authority has received a prior notification application for a new "agricultural" building at a farm that no longer carries out any conventional farming activity. Llamas are kept for trekking and for sale as pets. They are not kept for meat and, unlike alpacas, the fleeces cannot be marketed commercially. My authority considers this to be a recreation or tourism use and full planning permission would be required for any buildings. AH.

Although rather dated, the definition of agriculture at section 336 refers to the keeping and breeding of livestock and then goes on to state that this includes any creature kept for the production of food, wool and similar purposes. It does not suggest that animals kept for any other purpose, such as llamas, are excluded. However, practice has not supported this interpretation of section 336.

The courts have determined that the use of land for keeping leisure horses is not an agricultural activity. Therefore buildings that are designed to house them are not regarded as having an agricultural purpose, which would be required if they were to enjoy the rights given by part 6, schedule 2 of the General Permitted Development Order 1995.

Although horses do not provide an exact parallel, I feel that the buildings proposed would require full planning permission. Whether the llama trekking and breeding use as it stands, without these new buildings, constitutes a material change of use from any previous agricultural use is another matter. The enterprise appears to be a classic agricultural diversification project favoured by policy and might be difficult to reject unless there are overriding planning objections. GH.


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