DC Casebook: DC Forum

New queries

Permission has been granted for a mixed-use development including dwellings. Condition 2 stipulates that "the development shall be carried out in complete accordance with the approved plans unless otherwise amended by the requirements of condition 8". This requires particular details to be agreed. The developer subsequently submitted an application under section 73 of the Town and Country Planning Act 1990 for the "variation of condition 2 to substitute revised house types for 426 units". This was approved, requiring the scheme to start within three years. The developer has effectively renewed and amended the permission without paying a full fee. The section 73 application involved more than the variation of a condition and entailed planning parts of the development all over again. Should the council have required a new application? Is extending the timescale for implementation contrary to section 73 (5) of the act as amended, which states that such permission must not be granted under this section? MP.

The authority seems to have adopted a strange and probably illegal procedure here. As you point out, section 73 of the 1990 act was amended by section 51 of the Planning and Compensation Act 2004 so it can no longer be used to extend commencement periods. One effect of the procedure has been to reduce the authority's fee income considerably. Even so, unless the decision is subject to successful judicial review - and it may now well be too late to take such action - it must stand in law. However, I would not advise an applicant to try and save fee expenditure by emulating this practice. JH.

We submitted an application for filling a former brick pit accompanied by an environmental statement. The authority did not validate it because the infill material was not specified and so it could not decide whether it was a county matter. Also, no non-technical summary of the statement was provided and the main document was not considered to supply the information required by the relevant regulations. Pre-application talks were held and a formal scoping opinion was requested. The county council had already confirmed in writing that the landfill phase was not a waste operation and would operate under an exemption certificate from the Environment Agency. I would be interested to have your thoughts and those of any other readers who have found themselves in a similar position. SC.

Paragraph 5, part II, schedule 4 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 requires a non-technical summary. If this has not been supplied, the application would in my view clearly be invalid. If the infill material was not actually specified in the application, even if it had been agreed beforehand, that would also seem a technical reason for invalidity because the authority could not decide whether it was a county matter. Regarding the third issue, regulation 19 provides that where an authority is of the opinion that a statement should contain additional information to constitute an environmental statement, it should notify the applicant in writing accordingly. Procedures are then laid down for providing and publicising any further information. Rather than declaring the application invalid, additional information should be requested under regulation 19. As far as I can see, the application should not have been declared invalid for the third reason. JH.

Previous queries

BH enquired whether a 3m brick wall enclosing a vegetable garden or a 3m fence enclosing a tennis court would be permitted development (Planning, 4 September, p23).

- JH comments that the definition of an "enclosure" is clearly intended to cover walled gardens and tennis courts. My client intends to build a screen 3m high and 2m from his boundary to prevent overlooking from a neighbour's balcony. Would this qualify as an enclosure under class E, part 1, schedule 2 of the General Permitted Development Order 1995 as amended? MP.

- I would not consider a screen to be an enclosure. However, the definition of a "building" in the order "includes any structure or erection" and class E permits "any building or enclosure, swimming or other pool". So the screen would be a structure and therefore a building for the purposes of the order. On that basis, it would be permitted development. JH.

HL asked whether a former rural railway station converted to a dwelling would have two principal elevations (Planning, 9 October, p21).

- I agree with the first part of the answer to this query. The use of the definite article makes it clear - which is unusual in last year's amendments to part 1, schedule 2 of the General Permitted Development Order 1995 - that a dwelling can have only one principal elevation. It is sometimes hard enough deciding which one it is, without entertaining the possibility that there may be more than one. DCLG advice is confusing on this and sometimes best ignored. MA.

- You may be correct, but it would be nice if the order were clear. Good law is clear law. JH.

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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