Planning Law- Is there a breach?

Planning Law- Is there a breach?

1st February 2010

by Paul Denholm, Senior Underwriter and Solicitor

Celebrity name aside, the Sunday Express article on 31 January 2010 highlights the plight of a homeowner who, acting in good faith, added a modest sized conservatory to enhance  his home and enjoy the occasional ray of winter sun.

Upon deciding to sell the home, the homeowner was advised that the conservatory required planning permission. An application was made to the Council for retrospective approval.

This was refused and precipitated an enforcement notice requiring demolition of the conservatory. In a final bid to keep the conservatory, an appeal was made to the Planning Inspectorate.

The Council contested the appeal, arguing that the extension contravened its green belt policy, which states that any additions to properties should not exceed 30 per cent of the original building's floor space.

At the conclusion of a seven-month battle, the Planning Inspectorate ruled against the homeowner, who is now forced to demolish the conservatory.

The homeowner's planning agent, Dave Farrell, said: "It was only a conservatory and didn't have any impact on the green belt but the Inspectorate came down on the side of it being a percentage increase over and above the 1986 development. You can look at two different things five different ways and come up with five different answers. So he will remove the conservatory now."

 

First Title Comment

Planning laws allow for the addition of a conservatory or an extension to a house without planning permission subject to complex rules known as 'permitted development'. These rules apply various criteria to determine what additions can be developed without planning permission  and are open to interpretation.

In this case, a relevant criterion  was the amount by which the size of the building increased, calculated with the size of the 'original dwelling house' as the starting point. But it can be time consuming and in some instances impossible to establish with certainty the size of an 'original dwelling house' constructed many years ago.  

There are also planning laws that authorise, in certain circumstances, the change of use of a building without planning permission. The making of 'any material change in the use of any buildings or other land' is development. Planning permission is required for development, so it is necessary to consider whether a change of use of land constitutes development. There is no statutory definition of the term 'material change of use' so various techniques developed through case law have to be employed in order to analyse such an issue . It can therefore be open to interpretation whether a change of use is sufficiently material to require planning permission.

Councils are also empowered to create their own 'Development Plan' containing planning policies specific to their local area.  Section 70(2) of the Town and Country Planning Act 1990 and Section 38(6) of the Planning and Compulsory Purchase Act 2004 together require that planning applications should be determined in accordance with such a development plan unless "material considerations" indicate otherwise.

Local planning policies often have a strong influence on the outcome of a  planning application , however there is no statutory definition of what is a "material consideration" so, if uncertainty about the lawfulness of development is to be resolved by seeking a retrospective approval, it can be necessary to consider caselaw in order to provide an opinion as to whether an application for retrospective approval is likely to be successful or not.

There are also planning laws which provide that breaches of planning become immune from enforcement action by a local planning authority, if a breach of planning has subsisted openly and without enforcement action for a period of time. Depending upon the nature of the breach, this time period is either four or ten years.

First Title offers an underwriting service and associated insurance products that apply the expertise and insight of insurance professionals, qualified solicitors and local planning authority experience.

If you have a client whose property is affected by an existing planning defect that may be open to interpretation, then contact First Title Insurance and, expert-to-expert, we will consider with you the availability of a legal indemnity insurance solution. Contact Paul Denholm, pdenholm@firsttitle.eu, or call 0207 832 3117.

If your client has a similar problem you can obtain an instant quote at www.fast-title.com for many policies including lack of planning.

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