Newbie with permitted development issue

[Tabblink]

Hi Everyone. Looking for some help of it’s not too much trouble.

 

I wanted to build a detached garage so I went down the normal planning permission routes. It was denied twice after varying many things to try to contrive to the LPA reasons for refusal, we decided to appeal and this was also knocked back for a few new reasons, mostly because they didn’t think it would fit in with the street scene and would be detrimental to the existing rhythm of the area. I know they do not see precedent as an arguable case but it does a seem grossly unfair when at least 4 or 5 others have done very similar to what I want to do, and have either been allowed to do so in the way or getting planning permission or they have gone ahead and done it anyway without permission and without consequence. It seems that by the very nature of doing things by the book properly, I have inadvertently made a rod for my own back. With lots of suggestions that I should have just done it and hoped that 4 years would have passed before the LPA caught on, I’m beginning to think this may have been the best option. Sad but true.

 

in any case I decided to modify what I wanted to build yet again and conform to permitted development rules to build my garage. I meticulously read and re-read every piece of legislation relating to permitted development and I have made sure it complies to every aspect. However, I have had a visit from a local planning enforcement officer who explained that the LPA will be issuing me with an enforcement notice and they have already sent me a request for information under section 330 of the town and county planning act. The reason for the enforcement is because there was a planning condition on the original permission for the development of my estate which basically does not allow development without prior consent in the green hatched area on the proposed estate layout plan which was approved some 60 years ago. My garage does indeed fall within that area.

 

But, I do not believe it is that simple, the problem therein lies with the plan itself. There was a proposed layout plan for my estate which has the green hatched area which was drafted before the planning permission was granted (around 3 months looking at the dates) but this plan in incorrect. There are many houses missing, moved and new ones which didn’t not appear on the original proposed layout plan, as well as grassed areas and garage blocks moved, removed and/or reconfigured. This means the green hatched area can not be wholly enforced to everyone on the estate as the plan is incorrect, so I would feel that imposing it on me, when it could not be imposed on my neighbour behind me, or indeed my neighbour across from me (because his house doesn’t even appear on the plan) is discriminatory at best. There was also second plan, which is grouped in within the same application which dates a year after the first one but has the same reference number and was drawn before building works commenced. Is it entitled “layout plan” rather than “proposed layout plan” and is wholly correct fo what resides on the land to date, but critically does not have any green hatched area at all! 
 

If I receive an enforcement notice would it be feasible to appeal on the basis that the original condition should be voided as it is unenforceable or am I flogging a dead horse here? Does anyone have experience with this kind of issue.

 

I will of course be seeking professional and legal advice if and when I do receive an enforcement notice, any suggestions of a skilled planning lawyer would be greatly appreciated.

 

Thankyou to this who took the time to read through.

 

Tom.

 

 

[Ultima357]

Hmmm. I read through several thousand pages of planning guff to get my new permission in a conservation area. Only took 5 years ?. What you describe sounds like cherry picking by the lpa and subsequent approvals always trump the previous ones as far as I have found. The fact that at 60 years has lapsed is not profound though and it would be a matter of deciding which one of the approvals holds water. A decent local planning guy would be your best bet. Lawyers end up costing a mint and do not know the detail of planning. 

[Temp]

37 minutes ago, Tabblink said:

 There was a proposed layout plan for my estate which has the green hatched area which was drafted before the planning permission was granted (around 3 months looking at the dates) but this plan in incorrect. There are many houses missing, moved and new ones which didn’t not appear on the original proposed layout plan, as well as grassed areas and garage blocks moved, removed and/or reconfigured. This means the green hatched area can not be wholly enforced to everyone on the estate as the plan is incorrect, so I would feel that imposing it on me, when it could not be imposed on my neighbour behind me, or indeed my neighbour across from me (because his house doesn’t even appear on the plan) is discriminatory at best. There was also second plan, which is grouped in within the same application which dates a year after the first one but has the same reference number and was drawn before building works commenced. Is it entitled “layout plan” rather than “proposed layout plan” and is wholly correct fo what resides on the land to date, but critically does not have any green hatched area at all! 

 

Normally they stamped the official approved plans with "Approved" and the date. Any other file drawings are of dubious value. 

 

You will need to get a good look at the planning file and the exact wording of the planning condition. It might be the condition refers to a specific version of a drawing, the one that does show the green area.

 

Later changes to the layout of the houses may or may not affect the location of green area. In other words if half the plot was shaded green then that half could be subject to the planning condition regardless of the layout or number of houses that were eventually approved and built within that half.

 

The exception would be if the builder submitted a totally new planning application or applied to specifically amend the green area boundary.

[Mr Punter]

I have not seen this type of condition attached to large estates but they are often attached to smaller schemes.

 

What is the exact wording?

[Tabblink]

12 minutes ago, Temp said:

 

Normally they stamped the official approved plans with "Approved" and the date. Any other file drawings are of dubious value. 

 

You will need to get a good look at the planning file and the exact wording of the planning condition. It might be the condition refers to a specific version of a drawing, the one that does show the green area.

 

Later changes to the layout of the houses may or may not affect the location of green area. In other words if half the plot was shaded green then that half could be subject to the planning condition regardless of the layout or number of houses that were eventually approved and built within that half.

 

The exception would be if the builder submitted a totally new planning application or applied to specifically amend the green area boundary.

Thanks for your insight. The confusing thing is the planning approval mentions the plan by number, but both plans have the exact same number. And both are stamped approved, the first one with the green hatched areas is stamped approved at the time of the planning consent. And the second plan with no green area is stamped approved in January the following year.

 

The green hatched areas cover the front and sides of each dwelling and is quite specific. Of the 166 dwellings approved, I would estimate that around half of the plan is entirely different from the proposed version.

[ToughButterCup]

1 hour ago, Tabblink said:

...

the problem therein lies with the plan itself. ... but this plan in incorrect. There are many houses missing... so I would feel that imposing it on me, (the green hatched area) when it could not be imposed on my neighbour behind me, or indeed my neighbour across from me... is discriminatory at best.

...

 

In haste, (apologies)

Here's the Permitted Development guru.  An information goldmine for someone like you. 

Here's a search for the term   consistency   within that blog. 

 

Quote

The Deputy Judge (Sir Frank Layfield QC) found that the Secretary of State had paid no great attention here to the need for consistency of decisions in comparable instances or to the need, when related decisions are cited to him, to provide reasons why those decisions should be regarded as either of no or limited value to the case under consideration.

https://planninglawblog.blogspot.com/search?q=consistency

 

You appear to me to be arguing that the decisions relevant to you have not been made in a manner consistent with other similar cases.  Consistency is (or should be in a legal context) an important element of planning decisions. I think this might be a fruitful area for your research.

 

[Tabblink]

38 minutes ago, Mr Punter said:

I have not seen this type of condition attached to large estates but they are often attached to smaller schemes.

 

What is the exact wording?

“notwithstanding the provisions of the town and country planning development order, 1963 no building, structure, or erection of any kind (including walls, fence, hedges, trees and shrubs) being erected or planted on the land within the area hatched in green on the plan without the prior consent of the local planning authority”

[Ferdinand]

12 minutes ago, Tabblink said:

“notwithstanding the provisions of the town and country planning development order, 1963 no building, structure, or erection of any kind (including walls, fence, hedges, trees and shrubs) being erected or planted on the land within the area hatched in green on the plan without the prior consent of the local planning authority”

 

I would go and talk to people with the other garages to see if anyone has had thee Council going beserk before.

 

It might also be a good Q for Planning Aid (run by RICS) to see if they can advise you on the legal principle of enforcing a condition 50 years later when there are extant breaches, and when the original planning docs used appear to be the non-approved plan (if that is the case). You have to ascertain your facts yourself, then ask a general Q about the planning principles. Find them via google.

 

I would consult your Planning Solicitor or member of the Royal Town Planning Institute (MRTPI) about arguing that the condition is no longer enforcible. If it were a covenant not a condition then you would I think not have much trouble with it, as breaches of the same covenant close by undermine its enforcibility.

 

I do not knows the ins and outs, or how the "requirements" apply to old planning conditions that are breached elsewhere:

 

"planning conditions should only be imposed where they are: (i) necessary (ii) relevant to planning and (iii) to the development to be permitted (iv) enforceable (v) precise and (vi) reasonable in all other respects;"

 

iv, v, and vi look questionable here, to me.

 

But it is obscure, so you need an expert to worry them - and ultimately that is an MRTPI.

 

Ferdinand

[Temp]

1 hour ago, Tabblink said:

Thanks for your insight. The confusing thing is the planning approval mentions the plan by number, but both plans have the exact same number. And both are stamped approved, the first one with the green hatched areas is stamped approved at the time of the planning consent. And the second plan with no green area is stamped approved in January the following year.

 

If the second one is marked Approved that suggests it was formally processed as an amendment. See if the planning officer can produce any other paperwork relating to the amendment. I think the wording of that paperwork could be key.

 

[Mr Punter]

Agree with @Ferdinand regarding the need to consult an expert.  Please report back and good luck!

[Ferdinand]

Oh, and go in and read through  *all* the file.

 

Take an iPad for notes, and subtle pictures though not allowed.

 

Something like a Photoshop or Pintshop Pro can pull out the distortion via a stretch tool. 

[Ultima357]

“notwithstanding the provisions of the town and country planning development order, 1963 no building, structure, or erection of any kind (including walls, fence, hedges, trees and shrubs) being erected or planted on the land within the area hatched in green on the plan without the prior consent of the local planning authority”

 

This is not a Section 4 order which rules out any development. In line with the rest of the thread, the argument lies in which of the two is ultimately the one the council refer to. If they flag back to the original then you clearly have a case for precident owing to the other developments. I don't think their saying precident cannot be an argument. A planning inspector might well disagree with them and you'd win the appeal. The trouble with all this is that it is your money pitted against taxpayers money. They feel no pain.