Planning conditions

[Stones]

New topic following on from information here:

 

 

Copies of relevant posts

 

On 9/14/2016 at 11:30, Sensus said:

 

It's highly unlikely (albeit possible) that there's any Planning condition requiring that the existing house is demolished before you start construction on the new.

 

 

This very much depends where you live.  Up here, when planning consent is granted for the replacement of an existing dwelling / redundant building, there is usually a condition requiring the removal of the original dwelling before any construction work on site.

 

An anecdotal about house prices, when we sold our last house, 130 m2, we were in direct competition with a more recently built house of nearly 200 m2.  Our house sold quicker and for the same money.  Why - our house was a one off design, had interesting features and spaces and a good quality finish and nicely landscaped gardens.  The other house, although newer was a basic off the shelf kit design from a TF manufacturer and had little in the way of landscaped grounds outside.  It is certainly not just about floor area.  

 

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Sensus

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Posted 21 hours ago · Report post

On 9/14/2016 at 19:03, Stones said:

This very much depends where you live.  Up here, when planning consent is granted for the replacement of an existing dwelling / redundant building, there is usually a condition requiring the removal of the original dwelling before any construction work on site.

 

It depends... all Planning Conditions should meet the 'six tests' as set out in the NPPF, amongst which they have to benecessary and reasonable.

 

Demolition prior to commencement is neither. You can just about argue that demolition prior to first occupation would meet the test, but 'prior to commencement' would be an appeal every time, if they tried to apply it to one of my consents.If your authority is routinely applying such a condition, someone needs to take them to task over it, as they're acting improperly and, indeed, illegally.

 

In the OP's case, the existing dwelling would have to come down before you could physically build the second plot, so such a condition would arguably fail a third of the six tests, by not being relevant either.

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Shah

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Posted 21 hours ago · Report post

Very good points by all of you (PeterW, Redoctober, Sensus, Stones).

 

Thank you Redoctober: I've been looking for plot for sometime and have read as much as I could in the last couple of years (still not enough!). 

 

I can understand your frustration Sensus. I can give more details about the plot. The house will have 150m2 each on ground and first floor and about 60m2 for the second floor. The height is about 10 meters to the ridge. So basically the 60m2 is built into the roof space with one dormer window at the back. The ground floor also has a builtin garage. So the house has 5 bedrooms in total (5th on the second floor). 

 

21 hours ago, Sensus said:

In the OP's case, the existing dwelling would have to come down before you could physically build the second plot, so such a condition would arguably fail a third of the six tests, by not being relevant either.

I am still getting information regarding this. The current house is on one side of the entire site so it maybe that it won't be affected by partitioning the site into two. The new house is meant to be built on a different patch of land so it maybe possible to build while the old house is still standing (waiting for estate agent to come back with more information on this).

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Stones

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Posted 19 hours ago · Report post

21 hours ago, Sensus said:

 

It depends... all Planning Conditions should meet the 'six tests' as set out in the NPPF, amongst which they have to be necessary and reasonable.

 

Demolition prior to commencement is neither. You can just about argue that demolition prior to first occupationwould meet the test, but 'prior to commencement' would be an appeal every time, if they tried to apply it to one of my consents.If your authority is routinely applying such a condition, someone needs to take them to task over it, as they're acting improperly and, indeed, illegally.

 

In the OP's case, the existing dwelling would have to come down before you could physically build the second plot, so such a condition would arguably fail a third of the six tests, by not being relevant either.

 

The NPPF doesn't apply up here (Scotland) and I couldn't see the six tests you refer to in the Scottish NPF (albeit I just had a quick glance so they may well be there).

 

The Town and Country Planning (Scotland) 1997 has the following provision

 

Conditional grant of planning permission.

(1)Without prejudice to the generality of section 37(1) to (3), conditions may be imposed on the grant of planning permission under that section—

(a)for regulating the development or use of any land under the control of the applicant (whether or not it is land in respect of which the application was made) or requiring the carrying out of works on any such land, so far as appears to the planning authority to be expedient for the purposes of or in connection with the development authorised by the permission;

(b)for requiring the removal of any buildings or works authorised by the permission, or the discontinuance of any use of land so authorised, at the end of a specified period, and the carrying out of any works required for the reinstatement of land at the end of that period.

 

 

Local authorities may well consider such a condition reasonable and necessary to comply with local policies or adopted local development plans.

 

You've asserted your interpretation of the terms reasonable and necessary and that you would appeal any such condition. Have you had to appeal such a condition and if so what was the result?

 

You also suggest that my local authority is acting illegally imposing such a condition. Can't say I agree with you on that point. 

 

Interesting debate!

 

 

 

 

 

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Sensus

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Posted 9 hours ago (edited) · Report post

19 hours ago, Stones said:

Local authorities may well consider such a condition reasonable and necessary to comply with local policies or adopted local development plans.

 

You've asserted your interpretation of the terms reasonable and necessary and that you would appeal any such condition. Have you had to appeal such a condition and if so what was the result?

 

You also suggest that my local authority is acting illegally imposing such a condition. Can't say I agree with you on that point. 

 

 

I didn't appreciate you were in Scotland: different country, with different law, obviously (and hence irrelevant to the OP).

 

But the underlying principles of the law do remain the same. The actual written law perhaps isn't so explicit to the layman as the interpretive guidance in the NPPF (which is written in plain English),  but the bit of the Town and Country Planning (Scotland) Act that makes such conditions illegal is Paragraph 37(2): "In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations." ...the 'without prejudice to the generality' bit of the provision you quoted makes it clear that this principle is carried forward to Conditions.

 

The equivalent wording of the English law (Section 29 paragraph 1 of the Town and Country Planning Act 1971), isidentical.

 

The key word is 'material'. The 'six tests' in the NPPF are merely a way of testing what is 'material'. And, incidentally,ALL Planning decisions, not just conditions, must be based on 'material' factors... this is Planning law at its most basic and fundamental level.

 

 

 

But yes, I've appealed conditions before. I've also made many applications to vary or remove conditions (which, of course, is the stage before going to appeal). You don't always get the chance on minor applications (Planners have a habit of approving them without sufficient warning or dialogue), but the other thing I regularly do is to negotiate the Planning Conditions before the consent is granted, to ensure that they don't find their way through onto the approval notice in the first place. So far as I can recall, I've enjoyed 100% success rate on these issues.

 

I've only ever gone to appeal on much more complex and subtle issues than this one: any competent LPA would acknowledge immediately that it is unreasonable and irrelevant to make such a condition precedent to commencementon a replacement dwelling, and simply accept an application to vary it: precedent to occupation gives them amplepowers to control the development. Such a condition is just sloppy Planning, quite frankly.

 

(Apologies to Shah, we're derailing your thread with meaningless technicalities, aren't we... do we have moderators who could perhaps split this off into a separate topic on a more relevant section of the forum?)

 

Edited 7 hours ago by Sensus

[Stones]

But isn't what you are saying your interpretation of a guidance document? 

 

You refer to:

 

Paragraph 37(2): "In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations." 

 

If the local development plan, which of course will have been through an examination process by the (Scottish) government before it is adopted, has as one of it's policies that redundant or derelict buildings can be replaced, because they are detrimental to the overall amenity of an area, I'm struggling to see how it is unreasonable to condition their removal prior to development commencing.  I doubt we are going to agree on what is reasonable and unreasonable in this case, but does that not go to show that it is about interpretation?   

[lakelandfolk]

New topic. Is planning required to use agricultural land as a domestic garden?

Hi All,

We have the opportunity to purchase a strip of agricultural land to add to the back of a building plot that has full planning permission. Would we need permission from the local Council to add this to the plot for use as a domestic garden??

[Mikey_1980]

yes, you would need to formally apply for planning permission for change of use to use it as anything else other then agricultural land.

[Ferdinand]

It can be finessed in some ways.

 

Eg you can do what you want on it for I think 28 days a year without needing change of use.

 

Your best bet may be an informal chat to your PLanner or another LPA without identifying the place, or the Planning Aid people at RICS? There are many threads on this over at the gardenlaw forum.

 

Ferdinand

[IanR]

How obvious or visible is the piece of land? Yep, technically you need to apply for Change of Use. If you plan to build a shed within it, or even erect a washing line of a set of goal-posts, then you should certainly go for a formal Change of Use.

 

If you plan to just mow it, perhaps grow some fruit trees, erect only agricultural type fencing ie. post-and-rail, then you'd be unlikely to be queried about it. Unless a neighbour is likely to inform the Council, and then they have to act.

 

 

Edited September 19, 2016 by IanR

[lakelandfolk]

We would probably want to install some raised beds to grow fruit & veg etc, and at some point even a potting shed or greenhouse so sounds like we better make an official application. The existing approved house design is not suitable for us, it's a large 4 bed detached, we are wanting to downsize, max 3 bed, so will need to make a new detailed planning application anyway. If we decide to purchase the extra land then we would show that along with the new house design on the application. We might even ask to move the footprint of the new house further back from the road ie about 3 metres onto the additional land. The existing plot on offer is about 18 metres deep which would increase to 23 metres with the extra strip. Would that cover the change of use?

[IanR]

I think it is highly unlikely you would be able to move the foot-print of the new development on to what is currently Agricultural land. It's generally a stretch to get permission for a visually residential use on such land, ie. potting shed, greenhouse or raised borders. You'd generally need to argue "exceptional circumstances".

 

 

 

 

[PeterW]

Ag land covers small holdings so if you left it as is and ensured it was fenced accordingly then you can argue it is still agricultural use. 

 

As long as you don't turn it into a bowling green lawn, the use of planters and beds etc is fine - for the majority of ag buildings you don't need planning either. 

 

I have to say though that 5m seems very shallow - is it very wide ..? What's it used for currently ..?

[IanR]

I have to disagree. Any agricultural development, even if covered by PD, requires there to be a business need and a prior notice submission to the planning department. "Business need" requires there to be a demonstrable business that is supporting the owner or a farm worker. 

[PeterW]

39 minutes ago, IanR said:

I have to disagree. Any agricultural development, even if covered by PD, requires there to be a business need and a prior notice submission to the planning department. "Business need" requires there to be a demonstrable business that is supporting the owner or a farm worker. 

 

Thats a grey area when it comes to small holdings, and even the definition of a small holding is not fully defined in law. There is a whole raft of case law on this which is being continually challenged - there was one recently about whether 10 acres could be deemed as sustainable in a business sense. 

 

Up to 0.4Ha the rules are as per what is above, over that then it gets into the "business need" territory. It's further confused by what's constituted as an agricultural building, and again by whether it is deemed temporary or moveable (field shelters for example).   

 

The business need also also gets muddied when you look at the ancillary functions - is a farm B&B which is on the face of it more profitable than the farm an ancillary to the farm business..? Or could it be deemed the main business through diversification ..?? 

[lakelandfolk]

Hi Peter,

The strip would be about 5m x 28m (the full length of the plot). The land belongs to a commercial market gardener  who grows his produce in massif greenhouses in the field behind the plot.    The strip we are talking about is to the rear of one of the greenhouse  gable ends and currently totally overgrown with scrub and used as a dumping area for prunings/grass cuttings and general produce from the market garden which is unfit to sell etc.

 

Thanks Sensus, we will proceed on the basis of "subject to Planning" as you suggest.

[IanR]

I'd love there to be an SI somewhere that allows for Agricultural PD on parcels of land less than 0.4 Hectare, as I have just such a piece separated from the main farmstead that could benefit, but Schedule 2 Part 6 of the current GPDO makes no provision for this.

 

http://www.legislation.gov.uk/uksi/2015/596/pdfs/uksi_20150596_en.pdf.

 

PD is only available on parcels larger than 0.4 Hectares, anything smaller requires a planning application.

 

If there's a valid alternate interpretation out there, can you post a link as it really could be advantageous to me.

 

I'm sure different LPA's interpret the rules differently, but I have practical experience of an LPA that requires 3 years books to demonstrate a business capable of sustaining an employee in order to benefit from Agricultural PD.

[IanR]

 

2 hours ago, Sensus said:

Also worth bearing in mind that the land in question is already categorised as agricultural, so to pursue any enforcement action, the onus would be on the LPA to prove that it was being put to an alternative land use, not upon the owner to prove that it wasn't...

 

What are they going to do, prosecute him for growing fruit and veg on agricultural land?

 

LPA's have no powers to dictate land ownership in this sort of situation (they can't prevent part of the parent title being sold), so the fact that it is separated into an unsustainably small parcel is, to put it bluntly, tough.

 

As per my original comment, a low-key agricultural-type use would likely go unnoticed and unless there was a complaint from a neighbour, would likely be allowed to continue without interference.

 

However, there is no way of knowing how far that use type can be stretched without giving it a go.

 

2 hours ago, Sensus said:

LPA's certainly can be inconsistent in how they appraise such sites, but the rule you quote of demonstrating that a business can sustain an employee sound more like it was intended for applications seeking an Agricultural Worker's (tied) Dwelling?

 

Nope, I'm referring to Classes A & B where the argument is around the definition of an "Agricultural Unit" ie. land and buildings occupied as a unit for the purposes of agriculture, and, the land for which PD is sort being required to be part of an Agricultural Unit. The argument being that an Agricultural Unit is a business which must already be in place before the PD rights are established. The onus is on the submitter of the Prior Notice to provide sufficient information to confirm their case, and failure to provide information that establishes that the land is part of an Agricultural Unit gives the LPA the opportunity to reject. I'm not saying I agree with the argument, but I've seen it used a number of times.

[joe90]

Don't talk to me about LPA,s, with our site the LPA " assumed" that part of our garden was agricultural even though we do have a field next door and a fence showing the demarcation. When I asked how they came to their conclusion regarding the garden they said they used google maps.i  pointed out that there has never been a fence, hedge or ditch across the site and when I said I could get family members to sign an affidavit to state that in the last 30 years it had been used as a garden and I had land registry documents to prove my case they withdrew their argument. I did come across a blog from a solicitor somewhere on the net who stated the councils were very good at getting the curtilidge mixed up with building plot and he had fought many cases and won

 

rant over.