tag:blogger.com,1999:blog-8170718846507476773.post1498128107372023635..comments2022-12-13T14:45:12.233+00:00Comments on Martin Goodall's Planning Law Blog: Breaches of planning control – the need for continuity (3)Martin H Goodallhttp://www.blogger.com/profile/07079479984296674469noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-8170718846507476773.post-50308821602870860882014-02-20T17:22:21.129+00:002014-02-20T17:22:21.129+00:00In answer to Evan Owen, as always “it depends”. T...In answer to Evan Owen, as always “it depends”. There is a potential difficulty if one can only find the outline permission, and there is no proof that reserved matters were approved within the time limit. However, assuming you can get the LPA to accept that all reserved matters were approved, then a vision splay might possibly qualify as a material operation under section 56, but I would be cautious about this – the facts need to be carefully analysed.Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-79266542967199548722014-02-20T11:46:59.161+00:002014-02-20T11:46:59.161+00:00I noticed an application for a COL was granted in ...I noticed an application for a COL was granted in 2013 for an outline application dated 1982 when the landowner had simply put in a water supply pipe and the LPA confirmed this in writing yet didn't enforse.<br /><br />Could a 1973 outline application be considered for a COL if work on the visibility splay had been carried out within the 3 year period? Evan Owen - Snowdoniahttps://www.blogger.com/profile/12228099681098123960noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-41881873446744278292014-01-31T13:10:46.707+00:002014-01-31T13:10:46.707+00:00The second unanswered query is one that was posted...The second unanswered query is one that was posted on 24/1/14 regarding a breach of planning control comprising operational development which is also a breach of condition. For reasons that I will explain in a moment, the scenario actually postulated would not amount to a breach of condition, and so the point does not arise in that precise scenario.<br /><br />In practice, I think it would be impossible to find a condition attached to a planning permission which purports to prohibit further operational development. (As I have indicated, a condition removing PD rights is <i>not</i> such a condition.) Such a condition would undoubtedly be unlawful by reason of breaching at least one and perhaps two or three of the six legal tests, as well as being wholly at variance with ministerial policy as set out in Circular 11/95.<br /><br />What a condition removing PD rights does, on the other hand, is simply to make it necessary to apply for planning permission for minor development which would have been PD were it not for that condition. Carrying out development that is no longer PD by virtue of that condition does not constitute a breach of condition; it is simply operational development without planning permission, and is subject to the 4-year rule under section 171B(1).<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-2295738367549830262014-01-31T12:50:32.784+00:002014-01-31T12:50:32.784+00:00I am sorry that I am a bit behind in moderating an...I am sorry that I am a bit behind in moderating and responding to recent comments. To answer first the query about the subdivision of a house into a number of flats posted on 23/1/14, the Court of Appeal decision in <i>Van Dyke</i> made it clear that each flat so created was to be treated as a separate private dwelling, and so it is the 4-year rule that applies in this situation. However, it follows that the 4-year rule must be satisfied separately in respect of each flat, and so an individual flat will only become immune from enforcement if it has been <i>continuously</i> occupied throughout a period of 4 years.<br /><br />This would appear to produce a possibly anomalous situation if some flats in the conversion have become immune from enforcement while others have not. There is also a lingering doubt regarding the building as a whole and its common parts. Notwithstanding <i>Van Dyke</i>, it has been suggested that the conversion of the building as a whole might still be subject to the 10-year rule. If this is correct (and I have not formed any definite view on the point), effective enforcement action would appear to be almost impossible where some at least of the flats (and in some cases all of them) have individually achieved immunity under the rule in <i>Van Dyke</i>.<br /><br />The practical answer would appear to be that no reasonable LPA properly informed of the facts could conclude that it would be ‘expedient’ (in the words of section 172) to serve an enforcement notice in such circumstances. If an EN were to be served, it certainly could not require the vacation of any flat which had already become immune from enforcement under the 4-year rule (by reference to <i>Van Dyke</i>), and so the house as a whole could not be returned to use as a single house.<br /><br />There is just one possibility that occurs to me, although it would hardly be consistent with <i>Van Dyke</i>. This would be an argument relying on cases such as Murfitt -v- SSE ([1980] JPL 598) and Perkins -v- SSE ([1981] JPL 755), whereby development to which the 4-year rule ostensibly applied was found still to be vulnerable to enforcement, because it formed an integral part of a larger development against which enforcement action could still be taken under the 10-year rule. However, it would be a brave LPA that tried to enforce against a house conversion on this basis. The developer would no doubt rely on <i>Van Dyke</i>, and if the LPA succeed in persuading an Inspector to uphold the EN, a trip to the High Court would almost inevitably follow.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-21840724888594063242014-01-24T08:39:27.721+00:002014-01-24T08:39:27.721+00:00Martin,
Not sure if you've covered this yet bu...Martin,<br />Not sure if you've covered this yet but are you planning to discuss the immunity for operational development which is also in breach of a condition eg an extension which would ordinarily be permitted development but for a condition removing permitted development rights?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-78502740302673285732014-01-23T21:13:41.906+00:002014-01-23T21:13:41.906+00:00Firstly I want to thank you for your wonderful blo...Firstly I want to thank you for your wonderful blog. I just discovered it recently and I find your analyses to be spot on.<br />Regarding this discussion about the need for continuity for LDC's the focus has been on uses which were not residential to begin with. I've been wondering how this plays out in a case where one subdivides a single dwellighouse into a few flats. <br />If for example during the four years there are periods where some of the flats are vacant, would one need to show continuous occupancy of all the flats for a period of four years? Would any period of vacancy be acceptable to still be called continuous, after all we are starting with an established residential use of the property as a whole?Anonymousnoreply@blogger.com