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

- The Environment Agency leaves applicants to determine the finished floor levels of development in tidal flood plains in their strategic flood risk assessments. The agency uses the practice guidance notes in PPS25 to ascertain the lifetime of new schemes. On a recent application in an established residential flood risk 2 zone it has used a 100-year life expectancy, whereas an adjoining site for a health centre and swimming pool has been assessed at 60. The application is to replace one dwelling with three. The agency has objected because the applicant has not provided information on a means of escape or an adequate flood warning system. The agency's own warning system cannot be used as it is not considered adequate. Are there any cases where the inconsistencies in development's lives have been challenged, particularly in the flood plain? Are the requirements for means of escape sustainable at appeal?

- I am not aware of any appeals where different building life expectancies have been an issue in terms of flood risk, but maybe readers can advise of any. Regarding the means of escape, PPS25 advises that in determining applications local authorities should "ensure that all development in flood risk areas is appropriately flood resilient and resistant, including safe access and escape routes where required". So the lack of an escape route would be likely to count against the application and analysis of appeal decisions confirms this. A consultant with experience of flood risk assessments may be able to advise further on this issue.

- An application has been made for a mosque in an area comprising narrow streets of terraced housing with no off-street parking for residents and all available on-street parking taken by students and commuters. The applicant estimates the number of worshippers for Friday prayers at 100 to 150. Car trips to the mosque that would be replaced by this new one average 100. The use is contrary to local plan policies and residents are concerned that permission will be granted for a seriously detrimental use. If this is granted would that decision be likely to hold up under judicial review?

- Judicial review can only be successfully taken if a council makes a legal error in granting consent. Such an error could include administrative unreasonableness. Even if a proposal is contrary to policy, it can still be granted provided the council has appropriate reasons. Judicial review is expensive, especially if one loses and has to pay the other side's costs. If residents have sufficient resources to consider this, it would be sensible to employ a planning consultant or solicitor who can monitor the application's processing and advise whether there are grounds for judicial review. It would also be reasonable to warn the council that you might consider this course of action.

- Would a new rear dormer be allowed to have a juliet balcony, where the guard rail is adjacent to the doors and does not project, under class B, part 1, schedule 2 of the General Permitted Development Order 1995 as amended last October? Or is it classed as a balcony? It seems that there would be no objection to inward opening doors but would the railings require consent?

- The amendment order is not clear on this issue. However, the inspector in a recent appeal decision in Yorkshire (DCS Number 100-063-977) took the view that a juliet balcony would be permitted development.

- Permitted development rights for extensions have been removed from a house but the owners erected an extension without planning permission. What is the timescale for enforcement - four or ten years?

- Section 171(B) inserted into the Town and Country Planning Act 1990 by the Planning and Compensation Act 1991 brought breaches of conditions within the ten-year period and this has been confirmed by the case of Bloomfield v Secretary of State for the Environment, Transport and the Regions [1999].

PREVIOUS QUERIES

EM enquired about possible remedies where a semi-detached bungalow has been demolished without prior notification (Planning, 2 October, p23).

- Does not the neighbour have access to redress under the Party Wall etc Act 1996? The planning system does not exist to protect the interests of one person against another.

- EM appears concerned whether enforcement action could be taken to secure the rebuilding of one half of a pair of semi-detached bungalows demolished without permission, but goes on to say that there are no strong grounds for this. The answer is therefore simple - forget about it.

- Whether Party Wall Act notification would be necessary would depend on what work was carried out. DE makes a good point that an enforcement notice should only be served if there is a public benefit, such as having an unsightly exposed gable treated. In that context, SC is right to suggest that it would not be expedient to serve one if EM's authority decides there would be no public benefit.


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