Some three years ago we published a blog about How to get an open market dwelling in the countryside. In case you missed it, here is the procedure, exemplified by an appeal case in east Yorkshire (DCS Number 400-023-743):
The appellant in this case succeeded in gaining an unencumbered dwelling after satisfying an inspector that an agricultural occupancy condition was of no effect, the dwelling being materially different from that which had been granted permission.
The appellant pointed out that the house had been built on a different footprint and was a different shape from that approved; that there was an 18m distance between the location of the house as built and the house subject of the permission; and that the access that had been built was in a different location from that approved.
The inspector judged that the degree of change was not minor. Rather, he considered that what had been built was materially different from that which had been approved under the reserved matters. The council argued that even if the development that had been constructed did not relate to the reserved matters approval, it did fall within the scope of the original outline permission. After reviewing the evidence, however, the inspector did not believe that any reasonable person visiting the site with the benefit of the approved plans would conclude that the dwelling was the dwelling which was the subject of the outline permission or of the reserved matters approval.
The inspector explained that, as case law has established, if a development has been carried out other than in accordance with the planning permission granted it is unauthorised and unlawful, and therefore any conditions attached to the permission can have no effect on it. Issuing a lawful development certificate, he determined that the planning permission in question had not been implemented and therefore the building was not bound by the agricultural occupancy condition attached to the outline permission.
Section 9.413 of DCP Online concerns the validity of an agricultural occupancy condition where the dwelling has not been built in accordance with the approved plans.