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

A householder's permitted development rights have been withdrawn by a condition stating: "Notwithstanding class E, part 1, schedule 2 of the General Permitted Development Order 1995, no outbuildings shall be erected within the curtilage of the dwelling." Is any building erected in breach of that condition subject to the four or ten-year rule on immunity from enforcement? NB.

The Court of Appeal judgement in First Secretary of State v Arun District Council and Brown [2006] clearly and authoritatively establishes that the ten-year rule applies in all cases where there is a breach of condition, save where it prevents a change of use to a single dwellinghouse.

The condition that you cite does not stop a change of use to a single dwellinghouse. All it does is prevent the future construction of a garden building as permitted development. In the absence of the condition, any structure erected that is not permitted development would be subject to the four-year rule.

The pedigree of conditions removing permitted development rights is well established. However, Circular 11/95 warns against their routine use by local authorities without a proper planning purpose, such as to prevent serious harm to amenity or the environment. If, as may be the situation in your case, there is no way that ten-year rule immunity can be established, it may be possible to attack the reasonableness of the condition by applying to have it removed. GH.

Two estate agents' boards have been sandwiched together at a property, one advertising it for sale by one agent and the other advertising it to let by a different agent. Does the advertiser benefit from deemed consent for both boards, given that the total display area is the same as for a single board where both sides are visible? GL.

The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 state that an advertisement related to sale or letting enjoys deemed permission provided that no more than one such advertisement, consisting of a single board or two joined boards, is displayed. Among other restrictions, the size of a single residential board size is limited to 0.5m2 and a joined board to 0.6m2.

In the interpretative section of the regulations, a "joined board" is defined as one joined at an angle so that only one surface of each is usable. This section states that in the case of a two-sided board, the area of one side only shall be taken into account where a maximum area is specified. In Porter v Honey [1988], the courts ruled that the regulations refer to one board per sale or letting, not one board per agent.

A reasonable interpretation of all this seems to indicate that the type of back-to-back board to which you refer could be treated as one board and would therefore enjoy deemed permission subject to the 0.5m2 rule, even though different agencies are represented on each face. Does any reader reach a different conclusion? GH.

A client wishes to operate a limited number of two-seater hovercraft within the curtilage of an airfield that has the benefit of planning permission. The site is currently used for light aircraft and microlights. Do you consider that the use of an air cushion vehicle is a separate use requiring planning permission or could it be merely regarded as an alternative type of aircraft? JS.

Assuming that there are no relevant conditional restrictions, the answer depends on whether the introduction of the hovercraft would bring about a material change of use in relation to the current operation as lawfully carried out in accordance with the planning permission. Obviously, this is a matter of fact and degree and it is difficult to comment without possession of much more detailed information.

However, I feel that there may be circumstances in which a case could be argued that the hovercraft use is an ancillary activity. In addition, many argue that leisure flying falls within use class D2. In that light, the argument that there may be been a material change of use through intensification is difficult to pursue. GH.

PREVIOUS QUERIES

In reply to AH's query (Planning, 12 October, p25), GH advised that in the particular circumstances cited a building for llamas required full planning permission rather than the agricultural prior notification that had been submitted.

The notification arrangements for agricultural and forestry buildings do not contain any provision for a planning authority to consider whether a proposed building is or is not permitted development. The call-in procedure only allows a council to consider the siting, design and external appearance of the building, not the principle of development.

Despite the approach taken by some authorities, concerns that a building does not constitute permitted development cannot be resolved by calling in the details. I feel that this situation can best be resolved by a letter advising that the building is outside the notification system and requires planning permission. Any correspondence concerning calling in details would only serve to confuse the applicants or give them the impression that their building is permitted development after all. CL.


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