Curiouser and curiouser

The confusion here in relation to the prior approval procedure continues. Here is a multiple choice quiz:

What should a council do if it does not believe the proposed development notified in a prior approval application is permitted development. Should it:

a) decline to determine the application (the council’s approach in DCS Number 400-010-510).

b) (assuming the development complies with the relevant GPDO conditions) approve the application but notify the applicant that the development is not permitted development (the inspector’s ruling in DCS Number 400-010-510).

c) refuse the application (the inspector’s ruling in DCS Number 400-010-959); see below.

In (DCS Number 400-010-959) the inspector declined to issue a lawful development certificate for the change of use of offices at a nursery in Bedfordshire to five dwellings. The appellant had previously applied for prior approval for the development and the council’s decision notice had confirmed that prior approval would not be required. However, an advisory note was attached to the decision setting out the council’s view that the proposal would not constitute permitted development on the basis that the buildings did not fall within Class B1(a) of the Town and Country Planning (Use Classes) Order 1987. Sharp-minded readers will note that this is in line with the inspector’s ruling in (DCS Number 400-010-510). The appellant contended, however, that the council could have refused the application for prior approval if it was of the opinion that the existing use of the buildings did not fall within Class B1(a). In his view, the fact that the council had issued a decision confirming that prior approval was not required meant that the development would be lawful. In order to confirm this point, he sought an LDC. In this case, the inspector ruled that it would have been possible for the council to refuse the application for prior approval on the grounds that the existing buildings were not in use within Class B1(a) on the appointed date. He appreciated that the way in which the decision was set out might have caused uncertainty for the appellant but ruled that the council’s failure to refuse the prior notification application did not dictate that the proposed change of use would have been lawful.

Opinion: Whilst at first sight these differences might appear to be no more than procedural irregularities they have led to inconsistent and unfair decision-making. It’s time it was looked at properly.

The following DCP chapter is relevant: 4.34

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