Randomiser Posted March 8, 2019 Share Posted March 8, 2019 As per previous threads, we already have planning consent for a new house but we are trying to navigate a sequence of events so as not to trigger the commencement of development too soon. These include issues with trees and the need to relocate a powerline. We are working through the various pre-commencement conditions, but at this stage we want to be in control of when we are in a position to start development. There is a derelict house on the site and the planning consent is to replace that derelict house, it has to be demolished for the new house to be built. There is a requirement for the roof to be hand stripped and the strip to be monitored by a bat expert. For a couple of reasons we now think it makes sense to demolish the existing house before we commence development. Under the Town & Country Planning Act 1990 demolition is a "material operation" and therefore means a development has started. However, I do not believe demolition needs planning consent, under the Building Act 1984 what is required is to issue a Section 80 notice to the council, the council then has six weeks to respond with a Section 81 notice, which can contain conditions for the demolition work. So, I want to carry out the demolition, but I do not want it to be considered a "material operation" under the existing consent because if it is I will have started development before the pre-commencement conditions have been discharged and will presumably be in breach of the planning consent. My plan is therefore to submit the council's s.80 form, but with a letter attached to it which states that: 1) the demolition work was approved as part of an application 2) that there were conditions relating to protecting bats during the demolition in the decision notice giving consent 3) I know that the pre-conditions for the consent have not been discharged 4) that I am submitting the s.80 notice on a standalone basis, not as part of the approved scheme and that I do not believe it constitutes commencement of the development 5) that during the demolition I will take actions equivalent to those required under the consent with regard to bats Are there any thoughts on whether, if the council issues the s.81 notice approving the demolition, I am reasonably protected in terms of them later saying I started development without meeting the pre-commencement conditions? I am also thinking about adding a 6th point saying something along the lines of "by issuing a s.81 notice the council are confirming their agreement to this not being the start of development". If I do this I am concerned it may make it less likely that the council will issue the s.81 notice, so I would only do so if adding this point strengthens my position considerably. Any thoughts would be much appreciated. Thanks in advance. Randomiser. Link to comment Share on other sites More sharing options...
PeterW Posted March 8, 2019 Share Posted March 8, 2019 You need this done ASAP - miss the end of April from memory and you will need to wait til October. Link to comment Share on other sites More sharing options...
Moonshine Posted March 8, 2019 Share Posted March 8, 2019 10 minutes ago, PeterW said: You need this done ASAP - miss the end of April from memory and you will need to wait til October. Can you clarify this please? can you only fell trees Oct - April? Link to comment Share on other sites More sharing options...
PeterW Posted March 8, 2019 Share Posted March 8, 2019 Nope it’s the Bat work. 1 Link to comment Share on other sites More sharing options...
Randomiser Posted March 8, 2019 Author Share Posted March 8, 2019 45 minutes ago, PeterW said: You need this done ASAP - miss the end of April from memory and you will need to wait til October. The condition does not give any timing restrictions. The house was said to be in such a poor state that the chances of bats were deemed low, but unfortu ately not negligable The requirement for a watching brief during the hand stripping of the roof was in lieu of carrying out any further bat surveys. Is there an overriding legislative restriction irrespective of the conditioning? Link to comment Share on other sites More sharing options...
Temp Posted March 8, 2019 Share Posted March 8, 2019 (edited) My understanding is you need to notify the council.. https://www.harrislamb.com/blog/do-i-need-planning-permission-to-demolish-a-building/ Quote The Prior Notification of Proposed Demolition process is covered by the Town & Country Planning (General Permitted Development) Order 1995 Schedule 2, Part 31. This is used for proposals to demolish ‘a building or structure.’ Under Schedule 2, Part 31 of the Town and Country Planning (General Permitted Development) Order 1995 a prior notification must be submitted to check whether the council requires prior approval of the method of demolition of: any listed building a building in a conservation area a building which is a scheduled monument any freestanding domestic or non domestic building with a volume exceeding 50 cubic metres (measured externally) any non-domestic building adjoining a dwelling house any dwelling house This is in addition to other forms of consent required for demolition such as Listed Building Consent, Conservation Area Consent or approval via a Demolition Notice. Essentially the process of Prior Notification is to ensure that the demolition method is appropriate and that no protected species are being harmed. Depending on the circumstances it’s not unusual for a short letter on ecology to be required along with a demolition statement. So they will probably apply the same condition as your planning grant. Edited March 8, 2019 by Temp Link to comment Share on other sites More sharing options...
Randomiser Posted March 8, 2019 Author Share Posted March 8, 2019 35 minutes ago, Temp said: My understanding is you need to notify the council.. https://www.harrislamb.com/blog/do-i-need-planning-permission-to-demolish-a-building/ Presumably submitting the s.80 notice would be considered notice? Or do you think there is a separate requirement? Randomiser Link to comment Share on other sites More sharing options...
Jilly Posted March 8, 2019 Share Posted March 8, 2019 How about calling the ecologist you used for clarification? We only have common pipistrelles and so have to hand remove the cladding but don't have to be monitored. We are now considering demolition and rebuild (and all this new info has scared me!) but the ecologist said it was ok, and we just have to put up the prescribed bat boxes etc. Link to comment Share on other sites More sharing options...
Ferdinand Posted March 8, 2019 Share Posted March 8, 2019 (edited) @Randomiser I am not convinced that your ‘demolish but keep it unaffecting the start of development’ argument works. If something is what the TCPA says as a matter of law, I do not think you can change it by writing a letter, and if a Planner agreed to the change they are probably Ultra Vires ie outside their authority. Then if it came into question later you would have been acting on a false assumption, and the start of development would turn out not to be at the point you want it - that would be construed according to the law not the judgement of the Planner who got it wrong. You can’t, unfortunately, create a legal bubble not affected by the word of Planning Law, unless there is an exemption or distinction built into law already. The only one I could see was if the demolishion and the rebuild were structure as parts of separate Planning Applications. It may have been that the best way to achieve this was to demolish before applying for PP. If you must do it this way, one thing to consider may be applying for a Variation of that condition, and apply for demolition separately. But you would then need to make it absolutely clear and understood by everyone that the demolition is not related to the Varied PP. To me that sounds like more buggeration than it would be worth. I think you perhaps need to ask your Planning Department or Council Legal Department for how it will be viewed (perhaps try the latter first directly as, perhaps unlike planners and depending on your Council, they may not have been trained not to talk to you yet ?). You would need to frame it as a request for clarification of the law in xyz circumstances, only mentioning your case in passing. Alternatively ask Planning Aid, who may be able to advise (Google it - free service). Alternatively talk to your own experienced Property Law Solicitor, or Planning Consultant, if you have such on your team. Also keep in your mind that the start of development date is fundamental to your Self-Build CIL exemption, so - whatever you do - make damned sure you get that one right if it is material to your project. Get it wrong and it could be a financial bloodbath if your local CIL is substantial. Ferdinand Edited March 8, 2019 by Ferdinand Link to comment Share on other sites More sharing options...
Randomiser Posted March 8, 2019 Author Share Posted March 8, 2019 I think all of that is valid comment and it is without doubt a complex point. I was trying to think about it in a similar way to permission to do work on TPOed trees. Under our consent we are allowed to raise the crown on two trees, but like the demolition I can't have the work done until all the pre-commencement conditions have been satisfied. My work around was to simply apply for a separate consent to do the same work on the trees. Then as and when the work on the trees is done if I have not met all the pre-commencement conditions it is the stand alone consent I am enacting, not the consent for the house. If planning consent was required for demolition I could do the same thing, but as I said above I don't think planning consent is required instead it is a section 80 notice to 'apply' and a section 81 for the council to agree it. I guess if I submit the section 80 and they think it is an issue that the demolition is tied to the consent and the pre-commencement conditions are not discharged they can just refuse to issue the section 81 and give that as the reason. From a practical point of view if they issue the section 81 notice then the chances of the same council team raising an issue with the demolition is pretty remote. Tricky one. Randomiser. Link to comment Share on other sites More sharing options...
Temp Posted March 10, 2019 Share Posted March 10, 2019 Strange things can happen in planning land.. Suppose you submitted a notice of intention to demolish and go ahead with that. The planners might be able to argue your existing planning consent can no longer be implemented. There is no longer a building capable of being demolished and replaced. So you file a new application and find the local plan says they don't grant permission for new houses in the countryside, only replacement dwellings. Link to comment Share on other sites More sharing options...
Russell griffiths Posted March 10, 2019 Share Posted March 10, 2019 I’m missing something in this can you tell us why you don’t just get the pre commencement conditions discharged, and then carry on as normal. Link to comment Share on other sites More sharing options...
Mr Punter Posted March 10, 2019 Share Posted March 10, 2019 My experience with working prior to pre commencement conditions approved is that it depends on the work and the condition, so, for example, if you excavate for foundations without having all the external finishes signed off they will let it go. If you mess up the road when you should have submitted a wheelwashing scheme for approval you will get done. Like @Russell griffiths said, why not just get them signed off so you can work undisturbed? Link to comment Share on other sites More sharing options...
Randomiser Posted March 10, 2019 Author Share Posted March 10, 2019 Happy to explain the reasoning, I didn't in the first post as I didn't want it to become too much of an epic! The derelict house is being broken in to on a regular basis, if what some of the neighbours tell me is correct it is by local youngsters but I have no concrete evidence for who it is. It doesn't seem to matter what is done to secure the house they are determined enough to break their way back in. There is clear evidence that whoever is breaking in is doing a lot of drinking there and maybe worse. So my primary concern is that I don't want somebody, possibly under the influence to do something silly and end up getting killed in the not particularly safe house. So, while it may sound a bit cliched, I'm trying to do the right thing. The reason I can't just get the pre-conditions satisfied really comes down to one word - trees. There are a number of restrictions on the site due to root protection areas (RPAs), including the design of the foundations. I am in discussions with the SE and the most likely answer at this stage is helical piles, but even the design of these is likely to need investigations to check none of them are being located where there are significant roots. So it is not just a case of submitting material samples, etc. I also have a specific reason for not wanting the the pre-commencement conditions met and development to have started yet, which I alluded to above. We need to have a power line diverted, I think the best option is to have it put underground. If the development has started I am concerned that it will be much more difficult to get the cable put underground. There is a condition that requires an Arboricultural Method Statement (AMS) to be complied with and the cable would have to run across an RPA that the AMS says needs to be fenced off and which cannot be entered during construction. My understanding is that until the development has commenced, by definition the the conditions are not applicable, so they would not stop the cable being put underground. I am still waiting on the quote for the diversion of the cable and will only then be able to begin any negotiation on who is paying for this (as there is no easement or wayleave in place), so that work is not going to happen quickly. There is no specific condition in the consent about the demolition that I can see. But the application was described as demolition and replacement, it could hardly be anything else as the footprint of the new house overlaps the derelict one that needs to be demolished. The site is within a settlement, so I do not think the permission is dependent on a one-for-one demolition and build, but I am more than happy to agree that a lot of strange things happen in 'planning world'. There was a similar discussion on here on a thread I had about trees, the view then was that while there would be nothing to stop a tree being taken down before the development commenced the devlopers may react negatively and look for reasons to give me a hard time. So in summary the sequence of events I would like is: 1. Demolition old house 2. Put electricity cable underground once negotiations complete 3. Satisfy pre-commencement conditions 4. Start work At the end of the day the electricity cable is what definitely affects me directly, demolishing the house is just about me being concerned about the risk to others so if demolition would risk invalidating the consent then I giess I would just not do it. Thanks again for any input, Randomiser. Link to comment Share on other sites More sharing options...
Randomiser Posted March 23, 2019 Author Share Posted March 23, 2019 I have taken some advice on this from a planning consultant and I thought it may be worth sharing in case it helps others in future. Under the General Order 2015 on permitted development, Part 11 B1 (c) demolition which was permitted development but is included in a planning consent ceases to be permitted development. So once a consent including demolition is approved the right demolish withput consent is lost. I do not know why the law has been constructed this way, but that doesn't really matter as that is what it says. Randomiser. 2 Link to comment Share on other sites More sharing options...
Ferdinand Posted March 23, 2019 Share Posted March 23, 2019 (edited) I think this is a genuine grey area. Here is the opinion of a Local Authority Lawyer, arguing that PP overrides PD, therefore it can't be demolished under PD once a PP is in place with Pre-Commencement Conditions: https://www.localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=17875%3Ademolition-under-permitted-development-rights-or-planning-permission&catid=63%3Aplanning-articles&Itemid=31 But I have seen it argued (summarised) that Pre Commencement Conditions cannot apply because they do not exist until development has commenced on the PP. Here is a *load* of stuff from Martin Goodall about the different sorts pre-commencement Planing Conditions and how they have changed: https://planninglawblog.blogspot.com/search?q=pre+commencement+conditions I am not sure what to suggest here, other than to remember where the main focus is - building your house. You can easily end up like Mr Data: F Edited March 23, 2019 by Ferdinand Link to comment Share on other sites More sharing options...
Temp Posted March 24, 2019 Share Posted March 24, 2019 Regarding the cable... If you can mole rather than trench it should keep the tree officer happy. Link to comment Share on other sites More sharing options...
AliMcLeod Posted March 25, 2019 Share Posted March 25, 2019 On 23/03/2019 at 13:21, Randomiser said: Under the General Order 2015 on permitted development, Part 11 B1 (c) demolition which was permitted development but is included in a planning consent ceases to be permitted development. So once a consent including demolition is approved the right demolish withput consent is lost. What if the planning consent lapses (3 years?)? Is the demolition allowed under permitted again? Link to comment Share on other sites More sharing options...
Randomiser Posted March 26, 2019 Author Share Posted March 26, 2019 On 23/03/2019 at 14:14, Ferdinand said: I think this is a genuine grey area... I think you are right, but in this case the demolition is not specifically conditioned as part of the consent, given the new house overlaps the footprint it is just seen by the planners as an integral part of the application. The legislation says: B.1 Development is not permitted by Class B if... ... (c)the building is a specified building and the development is undertaken during the specified period, regardless of whether, in relation to the development, a prior approval event has occurred. I read that to mean that as the building is included in an approved application it is "specified" and that the discharge of pre-commencement conditions are an "approval event". So the PD is taken away at the point of approval of the application, not once the pre commencement conditions are discharged. Randomiser. Link to comment Share on other sites More sharing options...
Randomiser Posted March 26, 2019 Author Share Posted March 26, 2019 On 24/03/2019 at 21:49, Temp said: Regarding the cable... If you can mole rather than trench it should keep the tree officer happy. I'm not sure that is right in my case as the methods statement specifically requires hand digging of areas in the RPA. But I'd like to look in to it in case it helps. If you used a mole (which I never have) what happens when if hits a root, does it jut chop straight through it? Thanks in advance, Randomiser. Link to comment Share on other sites More sharing options...
Randomiser Posted March 26, 2019 Author Share Posted March 26, 2019 (edited) 19 hours ago, AliMcLeod said: What if the planning consent lapses (3 years?)? Is the demolition allowed under permitted again? I think once the consent has expired the PD returns. B.1 Development is not permitted by Class B if... ... (c)the building is a specified building and the development is undertaken during the specified period, regardless of whether, in relation to the development, a prior approval event has occurred. I think that is what the reference to "specified period covers. Randomiser. Edited March 26, 2019 by Randomiser Link to comment Share on other sites More sharing options...
Temp Posted March 26, 2019 Share Posted March 26, 2019 My understanding is that using a mole is far better for the trees than even hand dug trenches. However you need pits at intervals to start/end and change direction. See para 4.5 if this link works.. https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.rossendale.gov.uk/planx_downloads/2012-0517_Guidelines_for_Utility_Services.pdf&ved=2ahUKEwj20Ynf-qDhAhWyThUIHaVyBqoQFjATegQIAhAB&usg=AOvVaw1SBK9Pejit1n9k6AbUPUKq Link to comment Share on other sites More sharing options...
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