The nature of ‘conditions precedent’ has been exercising the finest minds in planning, as indicated in The order of precedence. When considering whether a permission has been lawfully implemented despite being in breach of a condition precedent a principal consideration is whether or not the details required go to the heart of the matter.
Posts Categorized: Quirks of the system
An appeal case involving student accommodation in Surrey (DCS Number 400-016-457) reminds us that planning conditions cannot be varied to the extent that something completely different from the original permission would result.
In planning, deviation from the proper procedures is fraught with peril. On the other hand, following procedure down a blind alley is not a good course either, as an inspector pointed out in (DCS Number 200-006-790).
An appeal case concerning a rear extension to a house in Essex (DCS Number 400-016-352) confirms that prior approval cannot be granted after the commencement of development.
The council assessed the extension against the provisions of Schedule 2, Part 1, Class A of The Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO), and concluded that as the proposed works had already been completed prior to the determination of the proposal, the scheme could not be regarded as permitted development, the inspector recorded.
In, out, in, out…..
In a case involving a garage extension at a house in Surrey (DCS Number 400-016-084), an inspector has pointed out that with regard to eaves overhangs there is a difference between Class A of the GPDO, which deals with extensions to dwellinghouses and Class E, which deals with buildings incidental to the enjoyment of a dwellinghouse.
Over the last few decades we have been quietly nursing the opinion that the civil servants charged with drafting planning legislation, before they even consider putting pen to paper or digit to keyboard, should be compelled to serve a period in a local authority planning department. Then, they might gain some insight into the difficulties that can arise for the poor souls who have to put their output into practice.
This doesn’t come up very often so we thought we’d share.
A condition requiring rooftop extensions at three adjacent properties in north London to be constructed concurrently has been upheld at appeal (DCS Number 400-015-207). The locally listed buildings formed part of a Georgian terrace and the council was concerned to protect the overall unity and character of the terrace. The owners of two of the properties were keen to proceed as soon as possible, whilst the third owner could not commit to the same time frame as the others. The inspector understood that, as the properties were in individual ownership, the condition was frustrating the ambition of others, particularly that of the appellant who was keen to progress a wider scheme of restoration for his property.
When considering the different functions of the description of development on a planning permission and of conditions it is worth remembering the explanation given by the judge in Cotswold Grange Country Park v Secretary of State for Communities and Local Government . He said “….the grant identifies what can be done – what is permitted – so far as use of land is concerned; whereas conditions identify what cannot be done – what is forbidden.”
Q When is a replacement not a replacement?
A When it’s not in the same place
A proposal to demolish an outbuilding and construct a garage/office/annexe at a house in the green belt in Derbyshire was turned down after an inspector decided that it could not be considered to be a replacement building in the terms of paragraph 89 of the NPPF (DCS Number 400-014-694).
Readers dealing with domestic extensions will be aware that Condition A.3(a) of Schedule 2, Part 1, Class A of the GPDO requires the materials used in any exterior work to be of a similar appearance to those used in the construction of the exterior of the existing dwellinghouse. The Technical Guidance for Householders offers guidance on what this ought to mean in practice but to some extent the meaning of ‘similar appearance’ must be drawn from precedent. On this basis, a recent appeal case in southwest London (DCS Number 400-014-332) is of interest.