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.


My local authority recently granted permission for a substantial replacement dwelling and removed permitted development rights for extensions and outbuildings. Before commencing this work the developer has built a detached garage adjoining the existing dwelling and a large outbuilding in the rear garden. We accept that both would be permitted development in relation to the existing house. The garage is sited and designed so that it can be attached to the new house when this is built. The developer has declined to stop work and enforcement action is being considered. Is there any legal scope to stop this blatant attempt to subvert planning control and achieve a larger development than the council is prepared to accept? DG.

The important point to establish in this case is whether the original house remained a lawful dwellinghouse to which permitted development rights still applied at the time of the construction of the additional buildings. Definitions in planning law do not provide an answer. However, the court-led tests for abandonment of use may be applicable.

If the original residential use can still be resumed and no works have commenced to demolish the house and implement the permission for the replacement, my feeling is that the building is still lawfully a dwellinghouse. I agree that what has taken place seems to be a cynical manipulation of the planning system. We would be particularly interested to hear of any readers' experiences with this issue. GH.

Section 171B(2) of the Town and Country Planning Act 1990 states that the four-year rule includes the change of use of any building to a single dwellinghouse. The General Permitted Development Order (GPDO) 1995 states that a dwellinghouse does not include a building containing one or more flats or a flat contained in such a building. The interpretation of "flat" refers to "the purpose of a dwelling". As the 1990 act and the GPDO are dealing with two separate issues, it would appear that the four-year rule is correct when dealing with an unauthorised change of use to flats. Do you agree? EW.

It is always important to distinguish definitions set out in statutory instruments because these are not binding on primary legislation. It is established law that the four-year rule is applicable to the creation of a single dwellinghouse, whether this takes the shape of a separate unit in the form of a house or a flat created within another building.

A common problem lies with establishing whether the unauthorised unit or units created are indeed separate dwellinghouses in terms of their facilities and degree of self-containment. The advice contained in paragraph 2.81 of Circular 10/97 is relevant. If they are not separate dwellinghouses, the ten-year immunity rule will apply. GH.

I recently received planning permission for a barn conversion consisting of a one-page approval notice signed and dated but with no conditions. A few days later I received another approval notice for the same proposal, signed and dated as before but this time including seven conditions. Is there any case law that would determine whether the first approval notice is valid, because the council wants us to destroy this in lieu of the subsequent approval? SH.

I imagine this difficulty arises out of an unnoticed administrative mistake that ultimately only the courts can resolve unless it is settled amicably. While not an exact legal precedent, Fisher v Wychavon District Council (2000) is worth referring to because it concerned a clerical error in a condition contained in a decision notice.

Points relating to whether an authority has the power to issue a corrected notice and whether a notice is valid if it does not relate back to the planning authority's original resolution have previously been discussed in these columns (Planning, 15 June, p25).

While the courts have determined that the decision letter itself constitutes the formal legal decision and must be regarded intrinsically, they may be prepared to look at extrinsic matters such as intention in cases where a notice is unclear or contains inconsistencies. As the original notice here seems to be perfectly clear on its face, there may be a good case for arguing that it is a valid unconditional planning permission. GH.

An estate agent in our area has recently started to use reflective material on his boards, but a fellow agent has complained that this amounts to an illuminated sign. The Town and Country Planning (Control of Advertisements) Regulations 2007 make no reference to reflective material except in the special case of class 11 directional signs, and I assume there is no breach. AG.

I imagine that it is being argued that these boards may appear to be "illuminated" when subject to external light sources such as street lamps or vehicle headlights. As these sources do not form an integral part of the advertisement, I cannot see that this brings them within the scope of advertisement control. GH.

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