Posts Categorized: Compare and Contrast

The order of precedence



In a recent appeal decision an inspector gives consideration to what makes a condition a true condition precedent (DCS Number 400-016-471).

The case concerns the refusal of a lawful development certificate for the creation of a first floor flat, granted planning permission in 2006. The appellant claimed that the permission had been implemented due to the digging of a trench. The inspector, however, was not satisfied either that the works were done in accordance with the permission or that they were more than de minimis. She explained that even if the digging of the hole had constituted a material operation, it was possible that the permission had expired if there was a failure to comply with a condition precedent before the deadline for commencement of the permission.

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Complex and strategically important development



Can anyone help out with a definition of ‘complex and strategically important development’?

Two recent appeal decisions have given us pause for thought on this matter. In the first, concerning nine dwellings, the inspector explained that “Paragraph 21a-010-20140306 of the PPG advises that only in exceptional circumstances can a negatively worded condition requiring a planning obligation or other agreement to be entered into before certain development can commence be appropriate such as in the case of more complex and strategically important development where there is clear evidence that the delivery of the development would otherwise be at serious risk.  As the proposal is for only nine dwellings I do not consider it to be either complex or strategically important.” Thus, she could only give limited weight to the social benefit of affordable housing (DCS Number 400-014-625). In the second appeal, seeking outline approval for twelve dwellings, the inspector was “satisfied that affordable housing could be secured through the imposition of a planning condition.” (DCS Number 400-014-624).

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Old habits die hard



In Out of sight, out of mind we reported an appeal case in which the inspector cited the Court of Appeal decision in John Turner v Secretary of State for Communities and Local Government and East Dorset Council [2016]. This established that the question of visual impact is implicitly part of the concept of openness of the green belt. We asked whether the effects of the court case have yet to become apparent. Not so much, appears to be the answer, as evidenced by the following recent decisions from two different inspectors.

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It’s not fair



Readers will be aware of the advice contained in the PPG which states that a negatively worded condition which prevents development proceeding until an obligation is entered into can be appropriate in exceptional circumstances and where it relates to one of the matters under consideration. In the appeal case reported in the Blog article Where there’s a will… the inspector decided that since the only obstacle which stood in the way of the proposed conversion of an office to a house under the GPDO proceeding was the need for an obligation to prevent future occupiers applying for or being entitled to a residents’ parking permit he was satisfied that such a condition was appropriate.

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In pants



Gary Lineker had to present MOTD in his underpants after Leicester City won the Premier League. The Blog finds itself in similar attire after betting its shirt on never seeing an inspector rule contrary to Government advice on affordable housing (Back in the real world). Because….an inspector has ruled contrary to Government advice on affordable housing (DCS Number 400-012-563). This appeal related to the redevelopment of a garage at a house in Surrey with a bungalow. Core strategy policy stated that for proposals comprising between one and four dwellings a financial contribution towards affordable housing should be sought, to be secured by means of a planning obligation. Whilst the developer initially indicated a willingness to provide the contribution the offer was subsequently withdrawn.

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Does that make sense?



Readers might recall mention in this blog (Joined-up government?) of a case in which costs were awarded against a Devon council after it refused a prior approval application for a barn on the grounds that it would not be located in an agricultural unit (DCS Number 400-010-510). The council believed that the primary use of the land was equestrian. Such a decision was not an option for the council under the GPDO, the inspector ruled.

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