Wednesday, 13 July 2011

The definition of development (3)


As I mentioned in my last post on this topic, I would also propose an amendment to paragraph (a) of sub-section (3). At the moment, this paragraph is confined to the subdivision of dwellings. There is also continuing doubt as to whether the amalgamation of two or more existing dwellings into a single dwelling amounts to development. This needs to be resolved.

What I am proposing is that both the subdivision of any planning unit (not just a dwelling) and the amalgamation of two or more planning units should in future be defined as development (being treated as a use which differs materially from the purpose for which the original planning units in question were last used) - thus:

(3) For the avoidance of doubt it is hereby declared that for the purposes of this section—

(a) the division of any planning unit into two or more separate planning units shall be regarded as a use of the original planning unit and of each of the new planning units so created for a purpose which differs materially from the purpose for which the original planning unit was last used, notwithstanding that any two or more of the resulting planning units are then used for the same purpose as the original planning unit, and whether or not any such use is within the same class specified in an order made by the Secretary of State under this section;

(b) the amalgamation of two or more planning units into a single planning unit shall be regarded as a use of each of the original planning units and of the newly formed or enlarged planning unit so created for a purpose which differs materially from the purpose for which each of the original planning units was last used, notwithstanding that any two or more of the pre-existing planning units were used for the same purpose as the new or enlarged planning unit, and whether or not any such use is within the same class specified in an order made by the Secretary of State under this section;


This is not designed solely in order to deal with the problem of ‘leisure plots’ (although it would have that effect) but will serve to remove other anomalies and difficulties which could otherwise arise where planning units are subdivided or amalgamated.

I have always been puzzled by the thinking behind the existing sub-section (3)(b) [which would become (3)(c) if it were to remain in the amended section]. This provides that the deposit of refuse or waste materials on land is to be regarded as a use of the land, if the superficial area of the deposit is extended, or if the height of the deposit is extended and exceeds the level of the adjoining land, rather than being engineering operations as you might expect. The provision seems to have been designed as a saving for the continued use of waste tips which had been established before the ‘Appointed Day’ (1 July 1948), but I am inclined to suggest that use of the land for this purpose ought logically to be treated as an engineering operation. The GPDO provides the necessary mechanism by which certain tipping operations can continue to be permitted development.

I am not proposing any changes to sub-sections (4) and (5), but sub-section (6) has long since ceased to be of any practical use, as it relates to the original compensation scheme introduced by the 1947 Act, which has long since become obsolete.

I dare say I have been wasting my time in thinking about the amendment of section 55 in this way, because the only ‘reform’ of the planning legislation in which ministers seem to be interested is the sort that enables them to grab the occasional headline – there are no votes in tidying up the technicalities. There are in fact a great many more provisions in the 1990 legislation that need sorting out and tidying up, and I live in hope that the day may come when an enlightened Secretary of State will finally appreciate the value of such an exercise. There may be no votes to be won in doing so, but he or she would earn the undying gratitude of planning practitioners throughout the land.

© MARTIN H GOODALL

2 comments:

richard said...

Hi Martin, Can you help, when applying for an agricultural dwelling, does the Functional test & the Financial test have to be undertaken by an independent body or person? Many thanks Richard

Martin H Goodall LARTPI said...

I think Richard’s question probably belongs on another post but, because it has been posted here, I will answer it. There are no hard and fast rules about the evidence required to support an application for an agricultural dwelling. I would simply suggest that such evidence would need to be reasonably robust, and so independent expert evidence is likely to carry more weight than evidence that might be seen to be to some degree subjective. Clearly accounts for several years are a pre-requisite, and some means of assessing viability is also going to be requested by the council. If Richard is in doubt as to what evidence would be acceptable, perhaps the planning officers should be asked what evidence they would be looking for in the particular instance.