More conditions and hopeful removal of them !

[Buster]

 

Got planning permission 3 years ago, we are now living in out beautiful new house.

 

however when permission was granted there was as usual conditions, the only one that we want removed if possible is this

 

4 Notwithstanding the provisions of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (or any Order revoking, re enacting or further amending that Order), no development of the types described in Schedule 2, Part 1, Classes A-H, Schedule 2, Part 2 Class A and Schedule 2, Part 14 Classes B-I of the Order, including the erection of extensions, porches, garages or car ports, the stationing of huts, fences or other structures shall be carried out on the site, other than that hereby permitted, unless the permission in writing of the Local Planning Authority is obtained.
Reason: To protect the appearance of the area to ensure adequate space about the buildings hereby approved and in the interests of amenity

 

 

we we are not in a national park, aonb, restricted planning area or anything unusual.

 

we built on an area of infill a 3 bed detached house in roughly half an acre plot.

 

the houses either side have full pd rights and no restrictions.

 

do you think it’s possible to apply for this condition to be removed?

 

on the site pre build were stables sheds greenhouse etc.

 

basically we want to be able to erect a shed, a gazebo etc without applying for permission each time.

 

do you think this is feasible or are we simply going to have to apply for each little thing we want?

 

many thanks

 

buster

[lizzie]

If they have removed your pd rights at planning stage they are unlikely to restore them.  Just apply for permission for what you want if its just a shed or gazebo it's unlikely to be refused and will be dealt with quickly hardly likely to need to go to a committee.  I spent many years living in a conservation area and had to apply for permission for everything you get used to it.

[Buster]

Thankyou for replying!

 

I think if we were in a conservation area I’d understand that, however if I look out of my new houses window I can see 200 new builds just started on the horizon, I guess I should of complained at the time rather than wait !

 

[lizzie]

@Buster I feel your pain LOL!

[newhome]

35 minutes ago, Buster said:

basically we want to be able to erect a shed, a gazebo etc without applying for permission each time.

 

 

Depends if you want to risk it. If it's just a garden shed they may not bother about it. Councils have better things to do than try to take enforcement action for a garden shed, unless it's sited somewhere objectionable to the neighbours and they complain, or it's the size of a small house. My previous house (developer built) had loads of similar type covenants attached to it; no sheds, conservatories, walls, no parking of vans or commercial vehicles, no changes to the colour of the front and garage doors etc etc without the permission of the developer. No one took any notice of it on our site and there were conservatories and sheds everywhere. The development up the road (same developer) had a residents' committee and they used to write to people with vans etc and also wrote to the developer to complain. 

[Dreadnaught]

Put wheels on said shed and say it is moveable?

 

Personally, I would explore challenging the condition. I recall reading on this forum an example of someone who successfully did so. As you describe your circumstances, there seems little reason for the condition to remain.  

Edited March 23, 2019 by Dreadnaught

[Buster]

36 minutes ago, newhome said:

 

Depends if you want to risk it. If it's just a garden shed they may not bother about it. Councils have better things to do than try to take enforcement action for a garden shed, unless it's sited somewhere objectionable to the neighbours and they complain, or it's the size of a small house. My previous house (developer built) had loads of similar type covenants attached to it; no sheds, conservatories, walls, no parking of vans or commercial vehicles, no changes to the colour of the front and garage doors etc etc without the permission of the developer. No one took any notice of it on our site and there were conservatories and sheds everywhere. The development up the road (same developer) had a residents' committee and they used to write to people with vans etc and also wrote to the developer to complain. 

Absolutely no hope of risking it!

 

i think  my neighbours don’t sleep, if a wrong type of plant grows I’m reported ! We have had 4 enforcement officer visits none of which had any effect on anything we have done howev we have to be squeaky clean!

we currently have a caravan, 2 horse trailers and a chicken shed all on wheels ! But think a gazebo may be taking it too far!

[Buster]

35 minutes ago, Dreadnaught said:

Put wheels on said shed and say it is moveable?

 

Personally, I would explore challenging the condition. I recall reading on this forum an example of someone who successfully did so. As you describe your circumstances, there seems little reason for the condition to remain.  

 

 

As above we use the moveable clause to our advantage!

 

however I’m leaning towards having a go for removal simply because of the individual situation, ie large plot huge garden, the house is smaller than the surrounding ones.

im tempted to approach a planning consultant who’s local expertise may prove invaluable.

 

reading loads on section 73 and can’t really see that the specific 6 points are all ticked !

 

[Ferdinand]

You can also apply to vary a condition, so if there is anything they are wedded to you could leave that aspect in place. You could suggest a modified condition if that was tactically better.

 

Good luck.

 

 

[lizzie]

@Buster - I have been corrected by HWMBO.

 

Below is an extract from a recent successful appeal against removal of PD rights.  It appears things seem to be turning against automatic removal of PD rights by councils on grant of PP as has been the habit in the past.  Worth a go to try and get yours removed.

 

The Planning Practice Guidance (the Guidance) advises that conditions restricting the future use of permitted development rights will rarely pass the test of necessity and should only be used in exceptional circumstances 

[Sue B]

Oooooer - that is very interesting @lizzie.

[Sue B]

Do you have the appeal reference please?

[Dreadnaught]

12 minutes ago, lizzie said:

The Planning Practice Guidance (the Guidance) advises that conditions restricting the future use of permitted development rights will rarely pass the test of necessity and should only be used in exceptional circumstances 

 

Yes, very interesting. Thank you. I wonder if this extends to Conservation Areas (like mine)? I suspect not.

[lizzie]

@Sue B will ask.  @Dreadnaught I think (and he may correct me!) that conservation area restrictions are superior to PD anyway.  I didn't have PD restriction on last house but I did live in a conservation area so had to get permission.

[lizzie]

@Dreadnaught mmm possibly it seems it may. Not able to get a definitive from HWMBO at mo sorry, he is bogged down in something.  Will try and remind him during the week.

[Buster]

Thanks Lizzie yes my reading leads me to believe that 6 conditions need to be solidly met in order to remove PD

in my case I dont believe they have been so will be looking really hard for any other cases or evidence to support this.

 

[Buster]

Also @lizzie would love the planning reference for the above!

[Buster]

This mornings homework!

 

 

When is it appropriate to use article 4 directions?

The use of article 4 directions to remove national permitted development rights should be limited to situations where this is necessary to protect local amenity or the wellbeing of the area. The potential harm that the direction is intended to address should be clearly identified. There should be a particularly strong justification for the withdrawal of permitted development rights relating to:

a wide area (eg those covering the entire area of a local planning authority, National Park or Area of Outstanding National Beauty)

agriculture and forestry development. Article 4 directions related to agriculture and forestry will need to demonstrate that permitted development rights pose a serious threat to areas or landscapes of exceptional beauty

cases where prior approval powers are available to control permitted development

leisure plots and uses

the installation of microgeneration

 

Six tests for conditions

14. On a number of occasions the courts have laid down the general criteria for the validity of planning conditions. In addition to satisfying the court's criteria for validity, the Secretaries of State take the view that conditions should not be imposed unless they are both necessary and effective, and do not place unjustifiable burdens on applicants. As a matter of policy, conditions should only be imposed where they satisfy all of the tests described in paragraphs 14-42. In brief, these explain that conditions should be

i. necessary;

ii. relevant to planning;

iii. relevant to the development to be permitted; iv. enforceable;

v. precise; and

vi. reasonable in all other respects.

 

 

 

Need for a Condition

15. In considering whether a particular condition is necessary, authorities should ask themselves whether planning permission would have to be refused if that condition were not to be imposed. If it would not, then the condition needs special and precise justification. The argument that a condition will do no harm is no justification for its imposition: as a matter of policy, a condition ought not to be imposed unless there is a definite need for it. The same principles, of course, must be applied in dealing with applications for the removal of a condition under section 73 or section 73A: a condition should not be retained unless there are sound and clear-cut reasons for doing so.

16. In some cases a condition is clearly unnecessary, such as where it would repeat provisions in another condition imposed on the same permission. In other cases the lack of need may be less obvious, and it may help to ask whether it would be considered expedient to enforce against a breach-if not, then the condition may well be unnecessary.

 

 

 

Conditions Restricting Permitted Development or Otherwise Restricting Use Restrictions on use or permitted development

86. It is possible, exceptionally, to impose conditions to restrict further development which would normally be permitted by a development order, or to restrict changes of use which would not be regarded as development (whether because the change is not a "material" change within the terms of section 55(1) of the Act, or by reason of section 55(2) and the provisions of the Town and Country Planning (Use Classes) Order 1987) (SI 1987/764). Changes of use can be restricted either by prohibiting any change from the use permitted or by precluding specific alternative uses (see model conditions 48--49). It should be noted, however, that a condition restricting changes of use will not restrict ancillary or incidental activities unless it so specifies (see paragraph 91 below). Similarly, a general condition which restricts the use of land does not remove permitted development rights for that use unless the condition specifically removes those rights as well.

 

Presumption against such restrictions

87. Both development orders and the Use Classes Order, however, are designed to give or confirm a freedom from detailed control which will be acceptable in the great majority of cases. Save in exceptional circumstances, conditions should not be imposed which restrict either permitted development rights granted by development orders or future changes of use which the Use Classes Order would otherwise allow. The Secretaries of State would regard such conditions as unreasonable unless there were clear evidence that the uses excluded would have serious adverse effects on amenity or the environment, that there were no other forms of control, and that the condition would serve a clear planning purpose.

88. It might, for example, be possible to justify imposing a condition restricting permitted development rights allowed by Part 2, Class A, of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 so as to preserve an exceptionally attractive open plan estate free of fences, or under Part 1, Class A of the General Permitted Development Order so as to avoid overdevelopment by extensions to dwellinghouses in an area of housing at unusually high density; or restricting changes of use so as to prevent the use of large retail premises as a food or convenience goods supermarket where such a use might generate an unacceptable level of additional traffic or have a damaging effect on the vitality of a nearby town centre; or so as to limit the storage of hazardous substances in a warehouse.

 

 

Specific conditions better than general ones

89. Because of the general presumption against such restrictions on permitted development or on changes of use which are not development, it will always be necessary to look carefully at the planning reasons for any restriction, and to ensure that the condition imposed is no more onerous than can be justified (it may be helpful to refer to paragraph 36 above). It would not be right to use a condition restricting uses where an alternative, more specific, condition would achieve the same end (for example, where it is necessary to restrict the volume of noise emitted from an industrial site, and a condition addressing the problem expressly can be used-see model conditions 6-11 -that condition should be imposed, rather than one restricting the permitted uses). Scrupulous care in the giving of proper, adequate and intelligible reasons for imposing conditions (see paragraph 10 above) can help authorities to ensure that the conditions they impose are not more onerous than is necessary to achieve their objective.

90. It will be preferable if a condition designed to restrict changes of use can be drafted so as to prohibit a change to a particular unacceptable use or uses, as in model condition 49 (provided the list does not become too long), rather than in terms which prevent any change of use at all; but in many cases a condition confining the use to the use permitted may be necessary (model condition 48). In appropriate circumstances, it might be reasonable to impose a condition limiting the intensification of use of small office or industrial buildings where intensification beyond a certain point would generate traffic and/or parking problems. Conditions designed to prevent the primary use of an office building being changed to use as shops are unnecessary, as such a change would involve

a material change of use amounting to development of the land and thus would require planning permission in any event.

 

[lizzie]

On the right track @BusterArticle 4 directions......makes a change from article 50!

 

Will send you appeal when I get back hopefully helpful.

Edited March 25, 2019 by lizzie

[Mr Punter]

Do an application for removal or variation of condition.  The fee is nominal.  If your application is not successful they will need to give a good reason and you will be able to appeal.

 

The PD Rights condition can normally be justified if the site is intensively developed, which yours clearly is not.

[Buster]

13 minutes ago, Mr Punter said:

Do an application for removal or variation of condition.  The fee is nominal.  If your application is not successful they will need to give a good reason and you will be able to appeal.

 

The PD Rights condition can normally be justified if the site is intensively developed, which yours clearly is not.

 

 

I think this this will be my plan!

 

just been on the planning portal and looks like it will incur a £234 charge got to be worth that.

 

how do you read this exemption?

 

 Is the application for alternative proposals for the same site by the same applicant, in order to benefit from the permitted development right in Schedule 2 Part 3 Class V of the Town and Country Planning (General Permitted Development) Order 2015?

 

if I could tick that box it would be free !

[Buster]

Thanks all for your help and advice

@lizzie many thanks for highlighting the previous appeal, after complaints as expected from the bitter neighbours we had a site visit.

 

pleased to say the condition was removed so full PD reinstated!

 

£250 well spent 

 

[lizzie]

33 minutes ago, Buster said:

Thanks all for your help and advice

@lizzie many thanks for highlighting the previous appeal, after complaints as expected from the bitter neighbours we had a site visit.

 

pleased to say the condition was removed so full PD reinstated!

 

£250 well spent 

 

Well done @Buster great news, pleased for you.