tag:blogger.com,1999:blog-8170718846507476773.post7167629308188044186..comments2022-12-13T14:45:12.233+00:00Comments on Martin Goodall's Planning Law Blog: Minor amendmentsMartin H Goodallhttp://www.blogger.com/profile/07079479984296674469noreply@blogger.comBlogger14125tag:blogger.com,1999:blog-8170718846507476773.post-74812814731234232742021-06-07T16:35:16.115+01:002021-06-07T16:35:16.115+01:00It depends. Building operations are in principle ...It depends. Building operations are in principle immune from enforcement 4 years after they have been substantially completed. But if the installation of the unauthorised window was a breach of condition, e.g. because of a condition requiring strict compliance with the approved drawings (which did not show this window), then it would seem that the 10-year rule would apply.<br /><br />In case anyone is wondering, the Court of Appeal decision in <i>FSS v Arun DC</i> applies only to an unauthorised change of use to a single private dwelling in breach of a condition that sought to prevent this. So far as I am aware, it cannot be extended by analogy to building operations in breach of a condition.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-35768902115083870062021-06-07T12:32:11.486+01:002021-06-07T12:32:11.486+01:00Is an unauthorised variation to a new build (no NM...Is an unauthorised variation to a new build (no NMA sought) - a window in a position not shown on approved plans and causing loss of privacy to a neighbour - immune from enforcement as it has been there at least 4 years? Lawrence at Simlawhttps://www.blogger.com/profile/12668787293799132694noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-66493995204240920842019-03-12T18:08:50.066+00:002019-03-12T18:08:50.066+00:00This is an occasional planning conundrum that does...This is an occasional planning conundrum that doesn’t just relate to non-material amendments. There can be other cases where planning permission is granted for a described development, but the approved drawings show something different, or more extensive.<br /><br />I suggest that <i>Barnett v SSCLG</i> [2009] EWCA Civ 476 might be cited as authority for the proposition that approved drawings cannot in themselves be taken as authorising something that clearly falls outside the scope of the development described in the operative wording of the permission. That case involved permission for a domestic extension, but the red line on the site plan showed a substantial enlargement of the planning unit. Both the High Court and the Court of Appeal ruled decisively against the developer. The permission did not authorise the enlargement of the planning unit, notwithstanding that this was shown on the site plan, which was one of the approved drawings.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-58490590691471087072019-03-11T10:45:06.820+00:002019-03-11T10:45:06.820+00:00what would be your view of the status of an amende...what would be your view of the status of an amended scheme granted a new p/p via NMA process but where a clearly 'material' change was shown on the submitted drawing(s) but not referenced in the paperwork?<br /><br />SimonRnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-33129375605126564702018-01-26T17:41:43.514+00:002018-01-26T17:41:43.514+00:00The short answer to the anonymous query of 25 Janu...The short answer to the anonymous query of 25 January is “No. I don’t know why there is definition in the Welsh legislation but not in the English.”<br /><br />For what it’s worth, my own view is that having an interest in land means having a legal or equitable interest, i.e. ownership, or an interest under a trust. A purchaser who has not yet completed their purchase has an equitable interest in the property they are buying, but only after contracts have been exchanged.<br /><br />An applicant for planning permission would not have such an interest unless they are also an owner or have an equitable interest in the property. If you think about it, this is entirely logical, because planning permission enures solely for the benefit of the property, and not for the personal benefit of the applicant.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-46543488282496163292018-01-25T16:47:27.917+00:002018-01-25T16:47:27.917+00:00Martin, do you have any views as to why "a pe...Martin, do you have any views as to why "a person with an interest in the land" (s.96A(4)) is defined for Wales (96A(10)) but not for England? Do you consider this could be broadened in England to include the person who initially obtained permission?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-50407209444040234332017-11-02T07:00:41.972+00:002017-11-02T07:00:41.972+00:00I wish there was a way to keep track of correspond...I wish there was a way to keep track of correspondence on this site; this has always been a topic that has perplexed me - particularly where a condition has been imposed, but the changes proposed to the uncompleted development would fall within a householder’s PD rights - so it’s nice to stumble across ongoing discussion of the matter.passerbyhttps://www.blogger.com/profile/07133499748098929618noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-51888711143661579952017-08-29T11:43:16.982+01:002017-08-29T11:43:16.982+01:00The latest anonymous comment raises an interesting...The latest anonymous comment raises an interesting possibility. However, if there is a genuine question as to whether the departure from the approved drawings really does represent a breach of the condition (or is merely <i>de minimis</i>), a BCN should not be used, and an Enforcement Notice should be served instead (provided the LPA is satisfied that is ‘expedient’ within the terms of section 172 to do so), so that the issue can be tested on appeal before an inspector. Ministerial advice has always made this clear.<br /><br />If a BCN were to be issued in respect of a departure from the approved scheme that is not ‘material’, this would arguably be <i>Wednesbury</i> unreasonable and would be open to quashing by JR. An LPA would be ill-advised to serve a BCN in these circumstances. However, the unreasonableness of the notice would not be a defence to a prosecution for non-compliance in the Magistrates’ Court, and so Judicial Review under CPR Part 54 would be the only remedy for the developer in these circumstances.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-35938039185585569282017-08-26T08:19:03.079+01:002017-08-26T08:19:03.079+01:00Rather than an enforcement notice, couldn't th...Rather than an enforcement notice, couldn't the council issue a breach of conditions notice? With the remedy to put the building exactly in line with the approved plans as per the condition? There is no appeal, so couldn't the council force you to adjust the window by 5cm and you have no recourse but to obey? <br /><br />You would need to go to court and prove you didn't breach the condition 'in accordance with' which would then come down to the definition of the word accordance in the context of the conditions. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-64951793294466321042017-02-17T15:15:29.018+00:002017-02-17T15:15:29.018+00:00I would broadly agree with Ben’s comment of 16 Feb...I would broadly agree with Ben’s comment of 16 February.<br /><br />He raises a possibility that had not been considered previously, either by me or by earlier correspondents, namely whether an amendment that is truly “non-material” would even be a breach of a condition that had required that the development be carried out in strict accordance with the approved drawings.<br /><br />As one of my previous correspondents observed, the only practical use of the section 96A procedure is to give the developer an assurance that the LPA will not attempt to take enforcement action against some footling departure from the approved scheme. Without an approval under section 96A the developer might not be absolutely confident that they would not otherwise be put to the trouble and expense of fighting enforcement action against some minor alleged breach.<br /><br />I still believe that to be of real practical value, section the 96A ought to be widened to allow for <i> material</i> amendments within certain specified limits. But I have little hope that such a change is ever likely to be made.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-70712152428953666642017-02-16T11:33:51.985+00:002017-02-16T11:33:51.985+00:00Hi
Not sure if anyone is out there still looking ...Hi<br /><br />Not sure if anyone is out there still looking at this, but here goes .....<br /><br />I have always been perplexed by the NMA procedures, approvals and how people view them.<br /><br />I maintain that all the NMA system does is, as the last correspondent noted, a) formalise a previously informal system and b) give developers confidence that the LPA is not going to take action against a negligible deviation from some part of a planning permission.<br /><br />There is lots of loose use of language out there, and also woolly thinking. In my view, a NMA application and approval is never NECESSARY / ESSENTIAL in terms of adhering to planning controls. This is because, by definition, planning decisions must take into account the development plan and any other material considerations. Considerations which are not material are irrelevant, and a deviation which is non-material cannot be enforced against. <br /><br />This is surely the case even where there is a condition specifying the plans to be adhered to. This is because only material deviations from the approved plans would constitute a breach of planning control. <br /><br />If my development has a window which is 5cm wider than the window which is shown on the approved plan listed in a condition, and the LPA agree that this is a non-material deviation, then what would they put as the alleged breach in an enforcement notice? The 5cm deviation would be (by their own admission) a non-material change to the approved plan, and so within the ambit of the condition = no breach as such.<br /><br />And what would they put as the steps necessary to rectify the breach? It cannot be to alter the window size by 5cm, as this would be a non-material change, therefore unreasonable and excessive in its requirements. If they require a NMA application to be made and an approval to be given, this would be entirely pointless, as all it would do is "regularise" something which is (by definition) not a material consideration. It would also be clearly contrary to guidance, which states that enforcement action should not be taken merely to secure an application.<br /><br />I also think that "conditions" on NMA approvals are not really conditions as such. It would be much better to describe them as informatives or similar. What they really do is clarify that the LPA is happy that the original permission can be carried out in accordance with a new plan (showing a particular deviation from the originally approved plan); and that this is not outwith the original permission and its conditions. This is the developer confidence bit.<br /><br />Or have I got this wrong??<br /><br />Bennoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-87860085920961536752013-12-03T09:44:22.744+00:002013-12-03T09:44:22.744+00:00In our authority the only real impact of 96a is th...In our authority the only real impact of 96a is that what was an informal process has become a formal process. I agree that if a change is not material then seperate consent is not required. Pre 96a we encouraged developers to seek agreement by way of an exchange of letters that a change was not material so as to give developers confidence up front that the LPA will accept that a planned amendment will not be a breach. To my mind 96a plays the same role in practice. RWhitenoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-39542581026194129162013-11-29T11:19:13.301+00:002013-11-29T11:19:13.301+00:00I was still an inspector when this came in and we ...I was still an inspector when this came in and we had the same discussion informally amongst ourselves at the time. The government then instructed LPA's to impose the type of condition you refer to on every permission for operational development in order to make the new Section work. However, the problem I always had with the instruction was that it seemed to contradict the advice at paragraphs 18 & 19 of the Annex to C11/95 about conditions relating to the completion of development, and in particular the test of need. Fortunately the instruction only applied to LPA's so I didn't impose the condition, although many inspectors did. Chris Anscombenoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-39841921702066938632013-11-29T08:38:32.655+00:002013-11-29T08:38:32.655+00:00“…a condition attached to the planning permission ...“…a condition attached to the planning permission that requires the development to be carried out strictly in accordance with the approved drawings…absent such a condition, I cannot see any need to apply under section 96A in respect of minor changes to the design, so long as these are not material in planning terms.”<br /><br />In our local authority we put a condition along the following lines on every permission granted:<br /><br />“The development hereby permitted shall be carried out in accordance with the following approved plans: 6066-02/1/A, 6066-02/2/A and 6066-02/4/B received 20 April 2010.<br /><br />Reason: For the avoidance of doubt and in the interests of proper planning.”<br /><br />I’m pretty sure that we apply this condition on the basis of government advice (although I can’t think which advice just now). So surely section 96A applications are almost always going to be necessary for non-material amendments, where there will be even a minor deviation from the approved plans listed in this condition?Dominic Heath-Colemannoreply@blogger.com