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 livestock building was granted permission in 1997 but the owner sold the site without implementing it. The new owner, who is not a farmer, implemented the permission in 2000 but used unperforated elevations instead of "hit and miss" boarding to provide ventilation for livestock as shown on the approved plans. Since then the structure has been used for a succession of unauthorised purposes, each necessitating enforcement action, resulting in other breaches of control. It has never been used for agriculture and was constructed by an owner who had no connection with agriculture. The original justification for allowing it clearly did not apply when it was built. Local residents feel that the building's presence is prolonging the unauthorised uses and it has cost the council a great deal in pursuing enforcement action. Residents want the council to use its discontinuance powers under section 102 of the Town and Country Planning Act 1990 to remove the building. Would such powers be justified in these circumstances? Could the present owner seek substantial compensation or reasonably require the council to purchase the site? Might there be another remedy? SM.

Because the approved boarding was not used, it would probably have been possible to argue that what was built differed from what was approved so the original permission was not implemented. Enforcement action could have been taken on that basis. However, it now has immunity under the four-year rule. A discontinuance notice requiring its demolition would seem a particularly appropriate remedy in these circumstances, but it would involve paying compensation. The owner would only be able to require the purchase of the site if it was incapable of reasonable beneficial use in its existing state. JH.

A local authority will accept a payment by cheque to mitigate the impact of a development on a special protection area as an alternative to a bilateral agreement or unilateral undertaking. However, it has advised that the monies will be refunded if permission is refused, but not if permission is granted but the scheme is not implemented. It claims that it does not have the resources to monitor the situation. Surely if the applicant approaches the council with a claim it would be duty-bound to refund the money? What is your view? JA.

The authority's stance does seem unreasonable, but the law regarding whether such advance payments are permissible is unclear. It would seem difficult, maybe impossible, to challenge the authority's position. Instead, I would recommend providing a unilateral undertaking agreeing to make the payment when the development commences or is first occupied. JH.

Would a householder require permission under the new provisions for a first-floor side extension above an existing single-storey attached garage if the garage is part of the original dwellinghouse? EH.

Class A.1(h), part 1, schedule 2 of the amended General Permitted Development Order (GPDO) 1995 restricts extensions going beyond a side wall. The house you describe has two side walls - the main one and that of the garage. The extension would project beyond the side wall of the main house and exceed 4m in height, so it would require permission. JH.

PREVIOUS QUERIES

DR asked whether an enforcement or breach of condition notice (BCN) should be served if side windows in a domestic extension built as permitted development are not obscure glazed (Planning, 17 October, p25).

- JH's response to RC's further comment on this matter (Planning, 31 October, p23) contains a typo in referring to section 87A of the Town and Country Planning Act 1990. BCNs are created by section 187A. JH also states that BCNs can only be used on conventional permissions, not those granted by the GPDO. Sub-section 187A(1) applies BCNs where permission for carrying out any development of land has been granted subject to conditions. Sub-section 187A(13) states that "conditions" include limitations. I am unaware of any qualification restricting their use to conventional permissions, whereas "limitations" would seem to support the use of BCNs in appropriate GPDO cases. Can you confirm that your definition is the right one? MS.

- The typo is acknowledged. Two other readers have expressed similar views. I have looked at this further and the Encyclopaedia of Planning Law confirms that BCNs can be used against non-compliance with GPDO limitations. Thank you for correcting this. JH.

In reply to DW's request for a definition of a "chalet bungalow", JH asked if readers are aware of any court cases in which Wikipedia has been cited (Planning, 24 October, p25).

Wikipedia relies on contributions submitted from users of the website and anyone can freely edit definitions. When I cited Wikipedia as a reference for an essay during my MSc in planning, my tutor roundly slated me for using an unreliable and untrustworthy source. It is unlikely, therefore, that any court would attach much weight to Wikipedia as a source of evidence. MW.


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