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 semi-detached bungalow has been demolished without the necessary prior notification, leaving the adjoining bungalow damaged and leaking. What enforcement action is possible and appropriate? Circular 10/1995 advises that where an enforcement notice is issued, it may require the construction of a replacement building "as similar as possible" to the demolished building. I am not sure that a notice could require, for example, remediation of the neighbour's walls and gutters. This would entail the perpetrator carrying out work to someone else's property and the neighbour might not allow access. Also, if this form of remediation fails, the council might be liable for having required the works. There are no strong planning grounds for seeking the bungalow's reconstruction. Can remedial works to the remaining bungalow be required through an enforcement notice? EM.

I presume that the person who demolished the bungalow carried out work on or caused damage to the adjoining one. An enforcement notice requiring such work or damage to that property to be rectified would have to be served on the neighbours. They would be committing an offence if it were not complied with, although they could probably claim the cost from the adjoining owner. Provided that it just related to work on his side of the party wall, there would not be a problem serving an enforcement notice to "make good" the property on the person who demolished the bungalow. If the specified work accords with normal practice, I would not consider that the council would be liable for future problems. You could consider an enforcement notice specifying the alternatives of making good the party wall or rebuilding the bungalow. JH.

If an incorrect ownership certificate is submitted with an application and only discovered when work starts on site, is the application invalid? Does work have to stop or can the planning authority regularise the situation in any other way? AJ.

The only way that the permission could be invalidated would be through an application for judicial review. Depending on the circumstances, the court might not consider it in the interests of good administration to quash the permission if work on site has commenced, especially if the permission was granted a while ago. JH.

PREVIOUS QUERIES

NH enquired about the definition of a highway when considering the restriction of the height of means of enclosure to 1m under the General Permitted Development Order (GPDO) 1995 (Planning, 14 August, p23).

- MB says in the absence of any other definition the common law one must apply unless the context requires otherwise. So let us consider the context set by the GPDO. However one defines a highway, that definition must be applicable throughout the order as this otherwise demonstrates that the context requires a different definition. Excluding private roads by adopting the common law position may appear relatively harmless in the context of garden fences, but this unlocks myriad other permitted development rights. Looking just at house extensions under part 1, schedule 2, it is clear from the order that the restrictions referring to a highway are generally concerned with the house front. If one excludes private roads from the definition, one surrenders this control. It beggars belief that this could be accepted by planners or by the communities living on private roads. When this is tested at appeal in respect of part 1 rights, I have only ever encountered acceptance from inspectors that a privately maintained road can be a highway for the purposes of the order. The usual tests are whether the path or road has the physical and relational characteristics typical of a highway - that is whether it is a linear path or way providing access for the occupants and the public to a number of different properties. Part 2 narrows this by reference to vehicular traffic, but I can see no reason to further discriminate between highways for the purposes of parts 1 and 2. RW.

- Again I would refer readers to Development Control Practice 4.3442, which indicates that inspectors frequently do not consider private roads to be highways for GPDO purposes. I do, however, acknowledge that this can lead to anomalies, as RW points out. An inappropriate front extension can look just as ugly adjacent to a private road as a public one, even if it might not need planning permission. JH.

DR enquired whether outbuildings within a listed dwelling curtilage can be altered under class E, part 1, schedule 2 of the General Permitted Development Order 1995 as amended (Planning, 4 September, p23).

I think that the answer given is incorrect. It would seem illogical that permission is not required for alterations to existing buildings but would be for proposed buildings. I was recently involved in an enforcement case relating to alterations to outbuildings at a listed house in Leicestershire (DCS Number 100-061-034). The council maintained that these alterations were not permitted development and the inspector agreed. The appeal was dismissed and the notice upheld with slight amendments. DC.


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