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

Condition A.3(a), class A, part 1, schedule 2 of the revised General Permitted Development Order 1995 states that external materials have to be of similar appearance to those on an existing dwellinghouse. Some local authorities are interpreting this requirement to mean that an extension with a felted flat roof cannot be permitted development on a property that has pitched roofs. Others take the opposite view. Who is right? Would it be enough that there is at least some element of felted roof - on another extension, for example - however small a part of the whole property this might comprise? PC.

As you suggest, opinion seems divided on this issue, illustrating yet another example of unclear drafting in the amendment order. In Burroughs Day v Bristol City Council [1996], the courts held that in assessing whether the external appearance of a building has been materially altered, one normally considers this from ground level. However, this judgement is probably not definitive on the point you raise because it related to a different issue. As a felt roof is not visible from the ground, I favour the second interpretation. If the first interpretation is correct, however, a felted flat-roofed extension could be permitted development if another part of the property also had such a roof. JH.

Condition A.1(i)(iv), class A, part 1, schedule 2 of the amended General Permitted Development Order 1995 indicates that a house extension is not permitted if it involves "an alteration to any part of the roof of the dwellinghouse". This suggests that it is not possible to interlock a two-storey extension at the rear of the premises with the existing roof because this would involve an alteration to the roof. Is this another error in the wording of this document? AM.

The provisions are not clearly drafted, but I presume that the intention is that a pitched roof on a new two-storey extension would be classed as a new roof rather than a roof alteration. Without this presumption, the provisions for two-storey extensions would be negated. JH.

Can the three-year time period for an outline planning permission for major schemes be extended where it is apparent that it will take significantly longer to deliver reserved matters applications for each development phase? Local planning authorities are often keen to ensure that urban extensions are comprehensively planned through the submission of one outline application. However, from a landowner's delivery perspective, major housing schemes will usually take five to 15 years to fully develop even in a buoyant market, by which time a comprehensive outline will have lapsed. CB.

I presume your enquiry relates to cases where outline planning permission is first being granted. Section 92 of the Town and Country Planning Act 1990 as amended gives local planning authorities the power to vary the three-year period. It seems appropriate to use such flexibility in the circumstances that you describe. JH.

I recently determined an application for prior approval of a phone mast. It was refused and a notice was issued within 56 days. However, the applicant has suggested that as the council did not advise that prior approval was required within 56 days, the equipment is authorised regardless of whether a decision was made. From information supplied by the applicant, it seems that this has happened in other areas and operators are using this loophole to install equipment that councils have deemed inappropriate rather than appealing against decisions. I would be grateful for any advice you can give. DJ.

A lawful development certificate appeal was dismissed last year in London (DCS Number 100-051-671) in similar circumstances. The inspector considered that in deciding to refuse prior approval for a mast, the council must also by default have taken the view that prior approval was required even if this was not indicated on the decision notice. This decision seems to provide strong support for you in your dealings with the applicants. As this issue has yet to go before the courts and a different interpretation is possible, it would seem wise for authorities to confirm that prior approval is required when refusing prior approval for telecommunications applications. JH.

PREVIOUS QUERIES

JH enquired (Planning, 24 October, p25) whether an application for an extension up to a boundary could be refused due to potential access problems for future maintenance.

Building up to a boundary and future maintenance are not planning issues, as JH's response states. However, it is high time that planners and planning committees were made familiar with the Access to Neighbouring Land Act 1992. This is described as "an act to enable persons who desire to carry out works to any land that are reasonably necessary for the preservation of that land to obtain access to neighbouring land in order to do so and for the purposes connected therewith"'. If agreement cannot be reached with owners of adjoining land, there is provision under the act to obtain a court order so that access can be obtained. PP.


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