DC Casebook: Appeal cases - 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

There are a growing number of applications for pubs and cafes to place tables on the pavement. This change of use would potentially seem to give developers rights in perpetuity that could be sold on. The land could only be reclaimed for highway use by revoking the planning permission. Do you have any comment? IM.

Your fears are largely misplaced thanks to the nature of the dual administrative controls on pavement tables and chairs. A parallel control is the licence required under section 115E of the Highways Act 1990. A licence may also be required under local acts on street trading. Highway Act licences are not normally given for more than 12 months.

As you say, planning permission is necessary for a material change from use as a public highway to ancillary catering. However, approval is often only given for a limited period because of the temporary character of the use and the need to monitor its effects.

It is certainly true to say that where premises have the benefit of planning permission and a licence for pavement tables and there is a reasonable prospect of renewal, this would enhance the market value of the business. However, if circumstances change it is likely that the pavement area concerned could be reclaimed for the public by non-renewal of at least one of these controls. GH.

PREVIOUS QUERIES

In response to two questions (Planning, 19 October, p25) concerning the role of planning authorities in the protection of bats and their habitats, GH outlined government policy as set out in Circular 06/2005 and quoted an appeal decision that required a bat survey to be approved only after permission had been granted.

The Conservation (Natural Habitats) Regulations 1994 state that "every competent local authority in the exercise of any of its functions shall have regard to the requirements of the habitats directive so far as they may be affected by the exercise of those functions".

Bats are listed in this directive as species that require a "system of strict protection". European Court of Justice rulings indicate that merely saying that the presence of a protected species is a material consideration is unlikely to satisfy the legal requirements for such a system of strict protection. So a local planning authority's authorisation cannot be given if it causes significant damage to an EU protected species.

The species' presence can only be determined through the prior commissioning of a bat survey by qualified and experienced staff. A condition requiring later approval of an ecological survey is contrary to the principles of the House of Lords judgement in R v London Borough of Bromley ex parte Barker [2006], which showed that a competent authority must be in possession of the full facts before an authorisation is made.

In the light of the system of strict protection, it may be prudent for planning decision-makers to consider the likelihood of a licence being issued. It could be a reason for refusal if a licence has not been obtained, as shown in R (Newsum) v Welsh Assembly Government [2004]. I am concerned that planning officers could be misled by the outdated circular guidance and the appeal decision quoted in GH's response. SA.

I read with interest your commentary (Planning, 12 October, p25) on the Sage case and the interpretation that some local authorities have put on it. We are facing such problems on a number of projects and this can cause considerable complications, particularly when dealing with older existing buildings. Can you tell me whether there is any current challenge available pending the proposals in the planning white paper being adopted as new law? JF.

- Section 64 of the Town and Country Planning Act (Scotland) 1997 states that a planning authority may, at the request of the grantee or a person acting with his or her consent, vary any permission if it appears that the variation sought is not material. It is by no means uncommon for a party other than the original applicant to want to take advantage of this provision.

Since planning provision should run with the land, I suggest that this is an unnecessary restriction that legislators in England and Wales would do well to avoid should they deem it necessary to amend the act. However, from my experience south of the border, I guess that most authorities would agree that the common practice of accepting minor amendments has worked quite well over the years. DE.

- The only way to seek to overturn the practice of requiring a fresh application where permitted proposals are subject to relatively minor alteration would seem to be application to the courts. Clearly, if the government is to include a reforming provision in legislation in the near future, it is hardly worthwhile to pursue this course of action unilaterally.

As DE points out, the wording used in the Scottish legislation is too restrictive and in my opinion is hardly specific enough. To avoid future wrangles, any new legislation needs to go some way to define what constitutes a minor amendment or variation, while still allowing some flexibility of interpretation to suit particular circumstances. GH.


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