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

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Planning permission was granted to convert an office building into a single dwelling. The conversion works were carried out but the building was never occupied. The landowner now wishes to revert to office use but the council resists this because of loss of housing stock. Can it do this if the building was never occupied for residential use? CL.

I assume that the previous office use enjoyed use rights. The first point to consider is whether planning permission is required for reversion to office use. The conversion works undertaken have demonstrated a clear intention to abandon the office use and the building is presumably identifiable as a usable dwelling with the requisite facilities.

On the other hand, I assume that the works have not rendered the former use incapable of reinstatement. The courts have not been entirely at one on whether a new residential use commences when premises are fitted out for occupation or when occupation actually occurs. Although the chances of success are not substantial, there is a case to argue that no material change of use will occur upon reversion.

Despite this hypothesis, if an application has already been made for reversion to office use there is ample precedent for refusal on the basis of loss of residential potential. I cannot identify a case in the particular circumstances you describe but feel that the local authority would still be entitled to assert loss of housing if it has policy support. Whether that stance would be supported on appeal is another matter because of the special aspects of the case and the minor nature of the loss. GH.

I want to remove a chimney, including the section above roof level, on a conservation area house that is not listed or subject to an article 4(2) direction. My research indicates that neither planning permission nor conservation area consent is required. The local authority, relying on class C, part 1, schedule 2 of the General Permitted Development Order (GPDO) 1995, suggests that the operation would not be permitted development. LG.

I have a tall chimney stack on a two-storey terraced house that is not listed or in a conservation area. The stack is visible from the public highway and is to be reduced by about 1m, leaving the top about 2m above ridge height. Would this be classed as development and require planning permission? DC.

In the case of the removal of a chimney from a house that is not listed or in a conservation area, planning permission is not required by virtue of part 3, schedule 2 of the GPDO. Provided that the relevant notification requirements are met, this deemed permission overrides whatever interpretation may be given to class C.

Where a house is in a conservation area, consent is not required provided that the demolition does not comprise a substantial part of the whole building. It is notable that this year's heritage white paper promised to reinstate control of demolition in conservation areas to pre-1997 levels. This proposal is part of the planned merger of the present conservation area consent regime with the mainstream planning system. GH.

A client purchased a long-established restaurant and was granted planning permission for a small side extension with about 30 extra covers, on condition that the restaurant could not operate takeaway sales. Our client now proposes to operate a restaurant with an additional takeaway service and has appealed against refusal for this. On the basis of paragraphs 24 and 25 of Circular 11/95, we argue that the condition does not fairly or reasonably relate to the development permitted. Do you know of any relevant precedent? HM.

It is not unusual for local authorities to apply conditions to proposals for extensions covering the whole of the existing use. The intention in so doing is normally to extend regulatory control over the perceived harmful aspects of established activities.

As you say, Circular 11/95 discourages such opportunist practice where it is not justified by the actual development under consideration. However, the circular also recognises that in some situations the resultant on-site intensity of development would be such that restrictive conditions would have to be applied to the whole site or operation to make a proposal acceptable.

In Penwith District Council v Secretary of State for the Environment [1977], an extension to a factory was proposed and a condition relating to the control of dust and fumes from the whole factory was imposed. The court reasoned that the condition was not ultra vires because the extension enabled the whole of the existing factory to work for 24 hours a day.

The only relevant appeal precedent from the catering field that I can identify [DCS Number 100-046-037] is already in your possession. Here, a condition had been applied to a hotel extension prohibiting all outdoor functions. The inspector felt that the condition did not relate to the development that was the subject of the relevant planning permission and denied rights that previously existed. In his view, it had been wrongly imposed. GH.


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