Monday, 24 September 2012

Pickles says “Sue the Council” !


I missed Pickles’ performance on BBC’s Sunday Politics Show yesterday, but I nearly fell off my chair laughing when I read that he had advised disappointed would-be conservatory builders to sue their local councils if they prevent them from building their longed-for extensions by making an Article 4 Direction.

Uncle Eric doesn’t seem to be aware that it is a very well established principle of public policy, which is rigorously enforced by the courts, that local planning authorities cannot be sued for the manner in which they use their development management powers. As a planning lawyer, I quite frequently hear people who have been thoroughly messed about by a local planning authority declare that they are “going to sue the council for this”. I just have to explain patiently to them that they can’t.

Actually, I think I know what Pickles had in mind. If an Article 4 Direction is made which removes certain permitted development rights from a property, a person who then makes a planning application for a development which would have been permitted development in the absence of the Article 4 direction has a right to compensation if that planning permission is refused. However, the right to claim compensation is hedged around with certain restrictions. First, compensation can only be claimed if the planning application is made within 12 months from the date when the Article 4 Direction takes effect. Secondly, the local planning authority can avoid having to pay compensation altogether if they give 12 months’ notice before the Article 4 Direction comes into force.

Another point to be borne in mind is that the amount of compensation that can be recovered may not be all that great. The measure of compensation is the capital value the property would have had if the planning permission had been granted, compared with the capital value of the property without the permission. In the case of the sort of extensions we are talking about, the difference might not amount to very much. The compensation does not include any element for the expenses incurred by the applicant in attempting to obtain planning permission or for any other consequential losses, and certainly nothing for wounded feelings, hurt pride and general annoyance.

Officers of Richmond LBC were recently told by their elected members to go through the planning laws with a fine tooth comb to find a way of avoiding enlarged extensions being built in their area. In fact they won’t have had to look very far. If local planning authorities really don’t like the idea of an amended General Permitted Development Order allowing significantly larger extensions over the next few years, then there is nothing to stop them making Article 4 Directions, whether Uncle Eric likes it or not. The risk of having to pay compensation to disappointed home owners deprived of their opportunity to build conservatories and other extensions is a factor which they may have to take into account. This may deter some authorities from making Article 4 Directions, but others may think it a risk worth taking.

© MARTIN H GOODALL

38 comments:

  1. Dear Martin,
    Another interesting blog.

    Does the same apply to LPAs when they unreasonably start enforcement action which then proves to be not applicable to the development carried out?

    In such a case can the person being unreasonably treated by the LPA in terms of blight on his/her personal reputation and property being developed claim for the damage done in terms of time wasted and upset caused ?

    What happens where there is a clear case of the LPA misleading a Planning Committee to meet its own agenda on enforcement, rather than following the planning legislation?

    Would the council still be amune from action, when the LPA is acting on its behalf?

    Regards

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  2. Martin,

    It seems to me that there are two weapons available to counter the threat of Article 4's being designated, willy nilly, all over the place: one is residents making large numbers of app's (no app' fees payable) to flood the DC dept. with non-paying work and appealing every refusal--a course of action which would (De)clog up the system in weeks; the second is re-instatement of the need for the SoS's approval for designations.

    In my opinion the first of these is unlikely to happen because residents don't know their rights (and the LPA is not going to enlighen them). The second is far more likely because its easy to do.

    I also think it was a mistake for NuLabour to remove the need for the SoS's approval for A4 designation proposals. I say this because we all know that once an A4 designation is made, the LPA immediately see the designation as in and of itself raising the status of the whole area of the affected land to then apply a greater degree of control across the board, even though the REASON(S) for designation in the first place may have nothing to do with any subsequently alleged need to control ALL development in A4 areas.

    Circular 9/95 made the crucial points about A4 designations, particularly para. 17 in APPENDIX D in which it clear that parliament does not sanction the application of rules designed to protect PUBLIC views to parts of buildings not forming such public views. In short, control to protect the fronts and leave the back alone.

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  3. Part 2.

    LPA's have no interest whatsoever in following that principle. As ever---and as demonstrated by Richmond's outburst---its all about retaining and/or enhancing discretionary powers. Its all very well the leader of Richmond saying that the coalition's proposals will lead to greater neighbour disgruntlement. In saying that, he IMPLIES that decisions made by DC officers/committees under an app' NEVER lead to neighbour dissatisfaction! Of course, that's utter rubbish.

    Its also worth noting that in some cases (I've no idea how many in percentage terms) it doesn't matter what the development is or how it receives consent (PD or by app') there will be people who'll be unhappy with anything at all being built for any number of reasons from psuedo-aesthetics to a grudge to alleged environmental concerns.

    On a different take, the coalition shot themselves in the foot with their announcement to liberise the PD regime (where have we heard that one before??), particularly for the mooted rear extension depth limit increase to 6m & 8m respectively for attached and detached houses. Just who did they think was the audience for this? Householders are kept in the dark about PD rights now so they're hardly likely to jump up and down yelling YIPPEE at the prospect of greater freedoms to build a rear extension. The outcry (crocodile tears) from Richmond and others was inevitable so the coalition's announcements merely armed the enemy.

    As it happens, SI 2008 Mo 2362 DOES need amendments following NuLabour's risible---and dishonest--attempt at liberalisation. And yes, such amendments need to include some increase in rear extension depth allowance from the currently inadequate 3 & 4 metres. It was originally proposed to be 4m & 5m, but changed at the last minute to the 3m & 4m to appease planning interests seeking to ensure that more developments fell within their net (under the guise of other concerns, of course). Most importantly, amendments to 2362 need to iron out the mess DeClog (and their consultants) made of reform in the first place. Whether we'll get any sensible amendments this time remains to be seen, but De-Clog's track record does not give me much hope.

    I remain of the opinion that De-Clog simply doesn't understand the nature of the housing stock in the first place and thus they are not equiped to devise standard development control measures. You cite further evidence of De-Clog incompetance in your reference to Uncle Eric's comments about suing LPA's, and again in your 21st September post on simplification: what useless rhetoric from Quartermain. Its enough to make me have some sympathy for LPA's and good DC officers when you consider what they have to put up with from DeClog.

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  4. I am afraid that the answer even in this case is that the courts will not entertain a claim for damages against the council. If there is an appeal against a wrongly served enforcement notice, the costs of the appeal itself (but not any other costs or expenses) can be claimed in the appeal, and the inspector may well make an award of costs if he or she is satisfied that the council has acted unreasonably in taking enforcement action. Outside the scope of any appeal, if the council’s action can be shown to have amounted to maladministration, a complaint can be made to the Local Government Ombudsman (but only within one year of the cause of the complaint first arising, and only after you have given the Council the chance to deal with your complaint themselves). However, the ombudsman will not interfere with anything that could be seen as an exercise by the council of its planning judgment, and it may be difficult to persuade the ombudsman that what the council actually did amounted to maladministration as such. If a finding of maladministration is nevertheless made, the ombudsman can require the council to apologise and pay compensation, but I would not be inclined to place too much faith in this procedure as a potential remedy.

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  5. Could Eric Pickles get his way by simply removing the right to make an Article 4 Direction fir such development during this proposed temporary period?

    If I am right about that please don't suggest it to one of his advisers.

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  6. It seems my responses to these various comments are likely to appear out of sequence, so I will publish the comments first, and then add my responses afterwards.

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  7. The first of my comments published above was in response to the query about suing the council for taking unjustified enforcement action. This next comment refers to the comment relating to fee-free applications for planning permission where PD rights have been removed.

    I entirely agree with every point in that comment.

    It is correct to point out that where you apply for planning permission for a development which would have been permitted development in the absence of an Article 4 Direction, no application fee is payable. I rather doubt that many people will make applications, just for the sake of it, but LPAs could be faced with a mounting bill for compensation if a significant number of refusals were to be issued.

    I strongly agree that it was a mistake to remove the requirement for confirmation of Article 4 Directions by the Secretary of State where any objection had been made to the direction. Maybe as a part of the proposed changes to the GPDO, this requirement should be re-instated.

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  8. My next response is to the suggestion that Eric Pickles might get his way by simply removing the right to make an Article 4 Direction for such development during this proposed temporary period. That is absolutely right; he could easily do that. But as for not suggesting it to his advisers, it’s too late! - I have reason to believe that they read this blog.

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  9. and so they should read your blog, being the voice of reason in a crazy world

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  10. Can a street sue a council for it granting planning permission for a funeral parlour next to my home? Nearly all the street objected as the business is a 24 hours business on a street where is all homes. We now have to put up with vans turning up and shutter noise at night, not only that the thought of death has been unwantly pushed in our faces. The business has painted the front a bright colour that is out of keeping with the rest of the building and street. We have neighbours now wanting move but told their homes have been devalued because of the funeral parlour, but these neighbours don't want to wake up to death every morning. Do you think we have a case of a careless act?

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  11. I am afraid the short answer to this question is “No”. The courts have made it abundantly clear that no claim to compensation can arise from a council’s decision to grant planning permission. (There is one exception to this rule, but it does not apply in this case.)

    If there has been maladministration on the part of the council (and this relates solely to the processing of the application and the procedures followed by the council in dealing with the application – but not the merits of the decision to grant planning permission) a complaint can be made to the Local Government Ombudsman, although the council’s own complaints procedure should be followed first. There have been cases where the Ombudsman has recommended the payment of compensation for loss of value to neighbouring properties, but I stress that this only arises where the council got the procedure wrong in some way. The Ombudsman won’t look at the planning merits of the decision.

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  12. We have been waiting for a decision on retrospective consent for secondary glazing for over 5 months. The Council policy is 8 weeks, 12 for the most complex cases. It is a delegated decision and the Conservation Committee unanimously approved it. During this time many mistakes, misinformation, lost correspondence have been made by various planning officials, which has not only led to unnecessary expense but aggravation for us. We were allocated a new case worker late in the process and 10 days after the consent from the committee are still waiting. We have registered this with the ombudsman, but are awaiting the response to our formal complaint first. Can we 'sue' the Council for the unnecessary costs and the aggravation caused?

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  13. Frustrating though it may be, it is not possible to sue the council in these circumstances, as the main post indicates, and as other comments I have posted here also confirm.

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  14. Martin

    Do you have a view on the risks of compensation in respectof of serving an article 4 on a non-designated assets where it is proposed to demolish the building to redevelop the site? In the case I refer, prior approval for demolition was refused, and an appeal dismissed for the redevelopment of the site for housing yet a compensation claim is being made for the full value of a vacant site with planning permission.

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  15. A claim to compensation may arise where planning permission is refused for development that would have been permitted development in the absence of an Article 4 Direction. However, the measure of compensation is only the difference between the value of the property without that particular planning permission (i.e. the permission required as a result of the removal of PD rights) and the value it would have had with that planning permission. The figures involved are often quite small, sometimes not even worth claiming.

    The potential amount of compensation in this case would appear to be the difference between the value of the site with a redundant building on it and the value of a cleared site – virtually NIL I would have thought. Planning permission for the redevelopment of the site would have been required in any event; so there can’t be a claim for compensation in that regard.

    This is going to be a matter primarily for the valuers to hammer out, but I would certainly think a Nil figure ought to be the starting point.

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  16. Hello Martin!

    My local council has granted planning permission for a housing development on my boundary, close to and overlooking my house. The windows of the development sit right on the boundary and are less than ten metres from mine, so that my privacy is considerably compromised. (The windows in the previous development were much smaller and higher, didn't open and were fitted with opaque glass). It would appear that both my objections and the adverse comments of the spatial planning team were ignored when the decision to grant planning permission was taken. Nevertheless, the Ombudsman has just made a provisional finding that, had they been taken into account, planning permission would still have been given! In other words, the Ombudsman seems to be looking at the merits of the decision in order to value my claim. If I accept this provisional view, I shall be entitled to £250 compensation. I feel that this is a derisory amount considering my lost privacy and the fact that I have effectively lost the use of my garden for the past year, due to the fact that the space is so tight that the contractors are having to stand on scaffolding placed on my side of the boundary in order to build the exterior wall. I feel that the council didn't think the matter through properly at all. The only way I can make my house and garden private again is to build a high fence just in front of the new windows, which would have the effect of obscuring the new inhabitants' view, which I don't think they'd appreciate. As you've already made it clear that I have no claim against the council, do you have any other ideas that might help me? For example, can you think of anything I could do to persuade the Ombudsman to take the matter more seriously?

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  17. There appears to be no easy answer to this. You could ask the ombudsman to re-investigate, but I fear that litigation might be the only option – an application to the High Court for judicial review of the ombudsman’s decision. One of my colleagues in Keystone Law’s planning law team is a particular expert on judicial review, but it is not a cheap procedure. Contact me at martin.goodall@keystonelaw.co.uk if you would like our professional help.

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  18. Can compensation be claimed for the imposition of an article 4 direction by a new owner of a property where it was imposed prior to its sale, ie the new owner knew it was in place.

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  19. Compensation may be claimed from the local planning authority where Permitted Development rights have been removed by an Article 4 Direction, if planning permission is then refused for a development that would have been Permitted Development in the absence of the direction. A claim for compensation must be made within 12 months of the date of refusal of the planning application. The right to compensation is established by section 108 of the 1990 Act, and this applies the provisions of section 107 as regards the scope of the compensation that can be claimed. This may not amount to very much in many cases.

    Compensation in respect of an Article 4 Direction that was not revealed when the property was purchased cannot usually be claimed from the vendors themselves, because the general rule is ‘caveat emptor’ (= ‘Let the buyer beware.’). On the other hand if the vendor made deliberately misleading representations on the subject, then this might potentially lead to a claim.

    The purchaser might possibly claim compensation from the solicitor who acted for them on the purchase if the solicitor failed to discover the Article 4 Direction or failed to advise the purchaser of its effect.

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  20. I took a planning application to committee for decision and the planning officer lied and misled the members throughout. He was filmed whilst doing so and I am in the process of a stage II complaint which his manager tried to quash on the basis that the appropriate route should be via the inspectorate. I contacted the ombudsman to get a provisional agreement to accept this case of maladministration once the stage two response had been issued. I was told categorically that the ombudsman will not look at any planning case when submitted by the applicant and that includes behaviour from officers leading up to the decision. I confirmed my understanding that a decision could only be reviewed by the inspectorate but my issue was being forced to appeal through misinformation. He was adamant that they will only look at any planning complaint if it is submitted by someone other than the applicant...ie a neighbour who has no opportunity to go to appeal.

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  21. I would agree that the most appropriate way for a disappointed or aggrieved applicant to pursue this sort of matter is by making an appeal against the refusal of planning permission to the Planning Inspectorate under section 78 of the 1990 Act. If the council (or its officers) can be shown to have acted unreasonably, an application can be made to the inspector for an order that the council should pay the appellant’s costs of the appeal.

    Complaining to the council or to the Local Government Ombudsman is very unlikely to give this complainant any satisfaction, quite apart from the issue as to the LGO’s jurisdiction. The LGO certainly cannot go into the planning merits or demerits of the matter. A successful planning appeal might give the complainant the basis for a subsequent complaint to the council in respect of the officer’s conduct, but they are unlikely to get anywhere by persisting with their current complaint.

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  22. Hi Martin.

    My Council approved the development of 170 houses. There has been countless breaches in planning conditions and the Council has done very little. The problem we are now experiencing is that one of the conditions in place was for a gate to be erected to stop residents in this new development using a private lane which I live in. The lane is just for the farmer and current resident use. The road is very narrow. The planning department failed to add the wording - gate to be closed. So now we have a gate which remains open all the time as the farmer refuses to close it !.Enforcement will not act as the condition does not state that the gate must be closed. So the condition is not been met and now we have a breach in Health safety with many cars using the lane. So from having less than 20 cars a day I am having over 100 passing my property. My living conditions have changed.Please kindly advise as the Council just ignores me. What remedies are available for me. Thank you.

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  23. The answer to this most recent query is to make a complaint of maladministration, first to the council and then (if no satisfaction can be obtained from the council) to the Local Government Ombudsman, but the complaint to the LGO must be made within one year of the complaint first arising (in this case, I suggest, the date on which the planning permission was issued).

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  24. Is it possible to sue a council under other circumstances? For example, we are in the process of doing a Neighbuorhood Plan. Our local council has designated us a Primary Rural Location - up for taking most of the development in rural areas. As such, we have done our research. There is documented proof that the council have known for some decades that two 150m culverts that pass through the village are causing property flooding, these culverts, by their own admission, are undersized and need replacing. This has not been done. The County Council and local head teacher have written to them strongly that our school is already beyond capacity and projected figures show that this situation will get worse - even without development. Our traffic survey shows that our road, 2 miles long with 12 x90 degree bends and unclassified, is taking the same volume of traffic as a rural A road. We are still classified as "sustainable" and a Primary Rural Location. Do we have any redress? If the council continue to allow applications, 145 houses currently outstanding, can we sue them for a new school, new culverts, bypass etc. Many thanks.

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  25. Hi Martin,
    We are opening a business and have applied for and had a planning permit approved, although with far more onerous conditions on it than we are able to accommodate (involved the requirement of a signed 473 agreement with landowners to agree to paying for a new service road). Since then we have made a new planning application and had verbal confirmation by a council staff member of the new planning conditions, and have subsequently employed people, undergone significant refurbishment works, and are paying rent and utilities on the premises. The new planning application has now been at council for more than 60 days, which is the council policy limit (or legislation?), and the council has still not completed the permit/report, and has additionally verbally assured us it would be finished "tomorrow" at the latest, for the past few weeks. Do we have a leg to stand on if we
    a) threaten to sue for the costs that have we have incurred after that 60 day legislated approval period. Its worth noting that we don't actually want any compensation, only the threat of it to get these people to do their job.
    b) what are the consequences if we just open?

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  26. In answer to both the recent queries (3 and 6 June), I have to repeat that, with very limited exceptions, damages cannot (as a matter of public policy) be claimed from a local planning authority in respect of the exercise of their regulatory powers (including the grant of planning permission).

    The one exception of which I am aware is Kane v New Forest DC [2001] EWCA Civ 878, which was a personal injury claim arising from a serious accident suffered by the claimant, allegedly as a result of poor planning. However, I should warn readers not to place too much reliance on this exceptional case.

    Another correspondent recently raised with me the possibility of a claim being made on the basis of flooding occurring where the Council knew or ought to have known that there was a flooding risk, or that the development might very well cause the flooding of neighbouring properties. I am not aware of this point ever having been taken in practice, but Kane might [but with heavy emphasis on the word might] possibly be called in aid to justify such a claim as a exception to the normal principle. But it would be a long shot.

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  27. Dear Martin,
    Our house is in a conservation area.About 10 years ago, our local council gave us an enforcement order to take down our gable end dormer loft conversion, and put the side roof back, resulting in a much smaller loft room space, at a cost of tens of thousands pounds.And also giving great stress and upset to all my family. Now,the house behind ours,which is also in the same conservation area, is having the gable end dormer loft conversion being done to their house. I checked at the local council website , and the work has been granted as Permitted development.
    From my view this was not fair.
    Can i claim compensation from the council, for putting my family through the stress and financial cost.

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  28. In answer to the anonymous query of 10 September, suing the council is not an option in this case. (It rarely is, if ever.) My anonymous correspondent appears to have had a raw deal, and the appeal decision he refers to may arguably have been wrong. However, there is nothing that can be done about that now. It is what lawyers call “res judicata” i.e. an issue on which a competent tribunal has adjudicated, and so the inspector’s decision cannot now be questioned or challenged in any way.

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  29. Further to my previous answer, I was muddling this matter with another case in which there had been a planning appeal. So we are not looking in the present case at "res judicata".

    Nevertheless, it is far too late now to re-open the matter, although the enquirer might wish to explore with the council whether or not his roof extension might after all be permitted development. However, I appreciate that (having been forced to remove the previous roof extension) he may not have any desire to do it all again!

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  30. Martin,

    I have been granted planning permission for part demolition and extensions to three sides of a property. There was less than 20 percent of the walls remaining, upon carrying out the part demolition - the walls and foundations were sub standard. I applied for a non material ammendment as the design is the same. Planning will not accept the non material ammendment and insist on a new full application. I have had to pat another fee and now a bat survey - can I reclaim the costs?

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  31. In answer to “Unknown” (2 December 2016), I have made it clear that there can be no claim for damages by a disappointed applicant against an LPA in respect of its exercise of development control functions.

    However, if the way in which a council handles an application amounts to maladministration, a complaint may be made (to the council itself in the first instance), and if satisfaction cannot be obtained, the complaint can then be made to the Local Government Ombudsman (in England) or the Public Services Ombudsman (in Wales), who may recommend that the council should make a payment to reflect unnecessary expense incurred, etc. In practice, though, it is difficult to get the Ombudsman to accept that there has in fact been any maladministration.

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  32. My LPA served a Breach of Condition Notice on 3 individuals rather than the legal owners of the land. I spent a long time researching the merits and preparing a judicial review. The LPA had NO evidence of a criminal standard to support the BCN. It was served just before Christmas when the LPA closed for 10 days and no appt to discuss this could be given in time before the expiration of the 28 day period in which to apply to judicial review. At the last moment, the LPA withdrew the application as they admitted we, as individuals, should not have been served. [Basic law, make sure you serve the right 'body' or person.] Can I sue the LPA for professional negligence and for the upset caused to me and the others and the costs of preparing the judicial review application, which unlike other litigation, is front loaded for costs?

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  33. In answer to Gen (3rd August), public policy prevents a public authority from being sued for damages in relation to the exercise of its regulatory functions. However, if a person has suffered injustice (e.g. by being put to unnecessary expense) due to maladministration on the part of a local authority, they can complain to the Local Government Ombudsman, although they would be expected to pursue the council’s own complaints procedure first. If the complaint is upheld, the Ombudsman may recommend that the council should issue an apology, and possibly also pay something by way of compensation.

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  34. Dear Martin

    I appreciate your response. The problem with 'systems' is that they are more often than not, toothless animals. I understand that even if the Local Ombudsman agrees with the complainant and 'gives' an award for monetary compensation, the LPA does NOT need to pay it.

    We shall see.

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  35. Martin, in 2004, I applied for planning for 5 dwellings, in the Scottish borders. This application was refused, citing, that the infrastructure of the village, could not take any more properties, sewerage, etc. including the point that I had planned a ribbon effect development, to take advantage of the sea views. this was also frowned upon, and the whole application was refused on these grounds. At no time did we get any suggestion from either the local council, or Borders council in regards to what else may be considered. Following the refusal, I appealed to the Scottish Office, only for them to support the original decision, but in doing so, stated that some of the previous applications in the area ( 9 properties ) were "contentious " Now, several years later, I see that another 9 properties have been erected, with more in the pipeline, yet no changes have been made to the infrastructure of the area. So, the big question is, can I challenge the previous decision, citing recent new builds, or attempt to submit new plans for the original site. thank you.

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    1. It is far too late now to re-open the 2004 decision. The only option, in light of more recent decisions allowing extra dwellings here, would be to put forward a fresh development proposal. But professional advice should be sought beforehand on the prospects of success, in light of current planning policies and other relevant circumstances that now apply in this area. Simply pointing to previous planning decisions is unlikely in itself to be persuasive.

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  36. Martin, we went to appeal to build a retirement cottage in our large garden. There were two counts to the appeal, one - green belt and two - proximity to an SPA. The inspector in this first appeal turned us down on green belt but upheld our application on nature conservation stating that there would be no adverse effect on the integrity of the SPA. We therefore went ahead with a second application to convert a large barn/garage on our property to a small retirement cottage. The proposal was accepted by the LPA on Green Belt grounds as re-use of an existing building but turned down on the proximity to the SPA. Since our previous inspector had agreed with our AA on the first appeal we went to appeal for a second time, convinced that we would win. However, the second inspector turned us down. My question is do we have any recourse to the Secretary of State for compensation for their change of mind on an identical application. We could not afford to go to judicial review as this could have cost us even more money. Thank you

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    1. The short answer to this question is "NO."

      JR is/was the only route, which is not only risky but potentially very expensive if you lose.

      Damages would not be claimable in these circumstances in any event.

      [Just a reminder: As explained in the Introduction to this blog, these remarks are entirely made without liability. They don't constitute legal advice, and cannot therefore be relied upon as such.]

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