tag:blogger.com,1999:blog-8170718846507476773.post7242118438989146975..comments2022-12-13T14:45:12.233+00:00Comments on Martin Goodall's Planning Law Blog: Jumping the gun on permitted developmentMartin H Goodallhttp://www.blogger.com/profile/07079479984296674469noreply@blogger.comBlogger10125tag:blogger.com,1999:blog-8170718846507476773.post-1273278530576096792021-08-17T18:04:29.061+01:002021-08-17T18:04:29.061+01:00I am aware that some Inspectors have been persuade...I am aware that some Inspectors have been persuaded by LPAs that commencement of internal works preparatory to a change of use represents the commencement of development, taking a ‘holistic’ view of the concept of development. I have dealt with this argument at considerable length in Part D.5 of Appendix D in the Third Edition of <i>A Practical Guide to Permitted Changes of Use</i>, and have presented my conclusion in paragraph D.6.<br /><br />I still maintain that because a change of use is a single event, its commencement and completion happen at one and the same time, and that any works not in themselves constituting development which are only preparatory to the change of use do <i>not</i> in themselves constitute the commencement of permitted development that comprises solely a change of use. Appeal decisions that find the contrary would, in my view, be open to challenge in High Court.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-3105558710900142552021-08-16T15:55:07.043+01:002021-08-16T15:55:07.043+01:00And yet Martin, LPAs continue to successfully use ...And yet Martin, LPAs continue to successfully use internal works which do not constitute development within the definition to exclude projects from the prior approval process as per appeal Reference: APP/P3040/W/20/3259439Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-34136374890995270202017-03-08T13:27:48.764+00:002017-03-08T13:27:48.764+00:00In answer to David, a clear distinction has to be ...In answer to David, a clear distinction has to be made between the position where the LPA has granted its prior approval or has notified the applicant that its prior approval will not be required (in which case <i>ex p. Palley</i> should apply, so that the LPA cannot then deny the basis on which that determination was made) and, on the other hand, the position where the LPA has either failed to determine the prior approval application, or has purported to notify the applicant of its refusal outside the 56-day period.<br /><br />In the latter case, the 56-day rule will only apply if the proposed development really does qualify as permitted development. Purported “validation” of the prior approval application is irrelevant, as it has no legal effect whatsoever. <i>Ex p. Palley</i> certainly cannot apply in these circumstances.<br /><br />In the scenario that David proposes, the developer has three choices – (1) go ahead with the development anyway (a high risk strategy, as the development will be unlawful, and subject to enforcement action, if it turns out that it doesn’t qualify as PD); (2) appeal under section 78 against the purported refusal of prior approval (which the Planning Inspectorate has accepted it is open to the developer to do, in view of the possibility that issues as to meeting the relevant criteria for PD may be in dispute); or (3) make an application under section 192 for an LDC (CLOPUD), based on the assertion that the 56-day rule has operated (but the LPA would probably refuse this on the grounds that it doesn’t qualify as PD in any event, in which case an appeal would then have to be run under section 195, and the same issues would arise as in the section 78 appeal suggested above). <br /><br />What the LPA can’t do in an appeal where it has either failed to determine the prior approval application, or has notified the applicant of its refusal outside the 56-day period, is to raise in the appeal issues that relate to the matters that required prior approval (traffic and transport, flooding risk, etc., etc.). The only issues that can be raised in this case would be those that go to the qualification of the development as PD. <br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-4632201046241279082017-03-07T17:39:53.320+00:002017-03-07T17:39:53.320+00:00another great post Martin!
in regards to archie...another great post Martin! <br /><br />in regards to archies comment is a change of use a development? just lets say a prior notification was submitted for a permitted change of use such as class J or O the LPA accepted the notification and validated it, However they refused it after the 56 day period on the basis the change had allready occurred? would that be grounds of appeal either on the refusal or as the 56 days had expired? davidnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-81719630948227709922017-03-06T23:52:09.382+00:002017-03-06T23:52:09.382+00:00I was being a little tongue-in-cheek my meaing was...I was being a little tongue-in-cheek my meaing was that they cannot take the PD rights away (other than through Article 4). or you might have ot take down the whole 8m to rebuild the 4m! smacks of a penalty to me...thought that wasn't allowed in UK!Archienoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-7879027069503408272017-03-06T11:59:31.800+00:002017-03-06T11:59:31.800+00:00In answer to the anonymous query sent on Saturday ...In answer to the anonymous query sent on Saturday 4 March, digging a foundation trench in these circumstances, i.e. before prior approval is granted, renders the entire development unlawful. This is very clearly spelt out in the GPDO. A prior approval should not be issued in these circumstances, but if it is (presumably because the LPA is unaware of the premature commencement of development), it cannot retrospectively authorise a development which is irretrievably unlawful.<br /><br />The uncompromising advice has to be – “Don’t jump the gun!” <br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-62635025557012268002017-03-06T11:12:11.553+00:002017-03-06T11:12:11.553+00:00I entirely agree with Archie. The Winters judgmen...I entirely agree with Archie. The <i>Winters</i> judgment has no effect in relation to any works that do not amount to development by virtue of section 55(2)(a). The criterion for section 55(2)(a) is whether the works in question affect only the interior of the building or, at least, do not materially affect the external appearance of the building. I have made the point before (as well as re-stating it in <i>A Practical Guide to Permitted Changes of Use</i>) that carrying out works preparatory to a proposed change of use, provided that those works do not in themselves constitute development, do not amount to the commencement of development for the purposes of Part 3 of the GPDO. However, one should bear in mind the risk, in light of <i>Impey</i>, as confirmed in <i>Welwyn Hatfield</i>, that the change of use may be taken to have taken place if those internal works have reached such a stage as to render the building useable for its new intended purpose. <br /><br />Reverting to Part 1, Class A, I agree that a domestic extension of less than 4m would be lawful in itself, but the whole extension will be unlawful as soon as it goes outside that dimension. There have been several examples of enforcement notices requiring the demolition of extensions in their entirety being upheld on appeal, despite arguments that the breach of planning control could be adequately remedied by simply reducing those extensions to within PD limits. Starting an extension that is designed and intended to extend more than 4m will be unlawful in the absence of a prior approval application having been submitted and determined (other than in default of determination by the LPA by the statutory deadline). A prior approval application submitted after building operations have started, even if they have not gone more than 4m beyond the rear wall of the original house, will be too late. I frankly thought this was obvious from the wording of the GPDO, so the judgment in <i>Winters</i> is unsurprising.<br />Martin H Goodallhttps://www.blogger.com/profile/07079479984296674469noreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-28476810567688727512017-03-04T23:11:48.373+00:002017-03-04T23:11:48.373+00:00Martin - with reference to Part 3 applcations - th...Martin - with reference to Part 3 applcations - the operative term must remain 'development' and what that actually comprises. ABD if operations, that were not development were undertaken prior to a Prior Notification application / approval (under section 55, paragraph (2) (a) (i) & (ii) then they cannot be development during or after; ever. <br />I'd say most LPA's are now interpreting Part 3 of the GPDO and those appeals that suit them, such that they would require planning applications to dry line a house or to change the milking machine!<br />If a 4m metre extension is PD then its always PD, irrespective of any PN appliction for a larger one, it is the right to build the larger (under PN) that is lost by commencement, not the right to build the 4m one. If there are no material objections to a larger one then it presumably would get planning consent anyway, and the guidance in the gpdo would be a big clue, and so it all becomes a bit immaterial other than to intelectualise someone's kichen size!Archienoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-23919115143018839162017-03-04T20:39:49.316+00:002017-03-04T20:39:49.316+00:00What if applicant applies and then 4 days later co...What if applicant applies and then 4 days later commences by digging a trench , but the council gives refusal after 42 or 56 days, doesn't that crystalise the permission in this case ?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8170718846507476773.post-44491815217649499752017-03-02T09:50:06.387+00:002017-03-02T09:50:06.387+00:00One can well imagine commencing construction of a ...One can well imagine commencing construction of a 4m extension on the assumption that it could be easily extended a further 2m, while still under construction, once the Prior Notification process is completed. But this makes clear that the act of commencing the extension itself voids the Prior Notification process. passerbyhttps://www.blogger.com/profile/07133499748098929618noreply@blogger.com