DC Casebook: DC Forum

New queries

Part of our two-storey house was demolished several years ago and replaced with a single-storey building that occupies the same footprint. The demolished part existed in 1948. We would like to add a first floor to the extension that would result in a building that is similar in form and volume to the original. There have been no other extensions to the property. Is planning permission required? TY.

Our advice on this subject has always been that the cubic content of a formerly attached but now demolished part of an "original dwellinghouse" may be offset when calculating permitted development rights for future extensions. This interpretation has been upheld on appeal in several instances (DCS Number 038-065-695).

So it would appear that express permission may not be required for your extension if none of the other permitted development conditions specified in class A, part 1, schedule 2 of the General Permitted Development Order 1995 are breached. However, your local authority will doubtless need to be persuaded by evidence showing the extent of the original dwellinghouse. GH.

A full application for planning permission for a house was registered by a council. Because no decision was made within eight weeks, an appeal against non-determination was lodged. This was validated by the Planning Inspectorate but later withdrawn. The council issued a decision notice that purports to be a planning permission together with a section 106 agreement, which was predicated on implementation of the house and removes permitted development rights. The house has been substantially completed for more than four years and accords with the plans that were approved by the council. I would be interested in your view on the validity of the planning permission. If you concur that the council did not have the authority to issue what purports to be a grant of planning permission, meaning that the house would be lawful by virtue of the four-year rule, would the restrictions in the section 106 agreement be binding on a prospective purchaser? PD.

Once an appeal has been made against non-determination of a planning application, jurisdiction passes to the secretary of state and a local authority cannot then determine it. Any later local authority decision, whether this comes after withdrawal of the appeal or not, would be a nullity and planning conditions would not be enforceable.

Likewise, any planning obligation previously entered into must have been predicated on a reference to a future grant of planning permission for the development sought. If the permission granted was a nullity, the authority would not have fulfilled its side of the contract and the terms of the agreement could hardly be legally binding on the applicant.

It is of interest that it was thought necessary to amend the Planning and Compulsory Purchase Act 2004 by inserting section 78A into the principal act. This provision introduced dual control for a four-week period after a case passes to the inspectorate, during which time a local authority can still make a decision. However, this facility has not yet been implemented by regulation. GH.

Planning permission has been granted for an intermediate care unit with no restrictive use conditions. The unit has been built but not occupied. The applicants are now proposing to use the building as a learning disability unit within use class C2. Is planning permission required for the new use? ES.

Any doubt could have been avoided had a condition been imposed restricting the use to that which was applied for and permitting no other within class C2. It is always prudent for local authorities to consider such a course of action, since development descriptions on their own may not always be relied on to ensure that what is permitted does not lawfully evolve into a more damaging development.

Had the intermediate care unit use you cite been commenced in the building constructed for it and been carried on for a reasonable if only relatively short period of time, the Use Classes Order could be used to secure permission for the introduction of the learning disabilities unit.

The principle that a permission granted by a development order may be brought into play in this way was the thrust of Kwik Save Discount Stores Ltd v Secretary of State for the Environment and Oldham Metropolitan Borough Council (1980), although in this case a one-month period was judged too minimal.

Be this as it may, in the case you cite there is an issue as to whether the planning permission in question can be construed as allowing the building to be used for a significantly different form of care that has far greater potential for amenity impact.

I cannot find an exact case precedent for this unusual situation. It may only be capable of resolution through the medium of an appeal against refusal to grant a lawful development certificate and perhaps ultimately by the courts. Any reader's experience on this issue would be of very great interest. GH.

- 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.


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