Here is your opportunity to have your say and debate any current development control issue raised by items posted in DCP News , or from any other media source, including DCP itself. It is intended to be a lively forum and criticism and pithy comment is positively encouraged. Discussion may also be used for submissions contributing to an understanding of control related practice matters. Included under this heading could be case precedents encountered by readers or experiences arising from good (or bad) practice. 

Discussion is also intended to be a medium where detailed advice is sought from other readers on particular case related matters. Queries of this type may then be used in the Forum feature in Development Control Casebook published every week in Planning.

Once an entry has been accepted it will appear in the "Recent Discussion Topics" section. As soon as someone replies the response will be posted and a "View Responses" button will appear next to the entry. After a period of time the item will be moved to the Existing Threads section, where further contributions to the topic may be posted.

Moderated by Gordon Holt

Discussion Rules

Obscure glazing levels?

The recent General Permitted Development Order amendments require some windows to be ‘obscure-glazed’.  I have a case where a window has been fitted with glass the manufacturer calls ‘level 1’ obscure glazing,  but it allows direct overlooking of a neighbouring property.  Is there any case law or definition of what can be classed as obscure glazing? BK.

Control over gate to private road?

On a corner site in a conservation area the approved drawings for a new dwelling show continuous enclosure along one road boundary. The means of enclosure was reserved for approval by condition and a scheme for a wall with a gate has now been approved along this road boundary. The road and boundary are privately owned with public access. Because no access is shown on the approved drawings but a gate is shown on the approval under the condition, is the latter approval a nullity? What remedy is open to the road owner to prevent the gate being built or achieve its removal if built? GH

Swimming pool near boundary- Class E control? 

I have been refused a lawful development certificate for a swimming pool building because part of it was within 2 metres of a boundary and the council therefore considered the WHOLE of it should be less than 2.5 metres high, so it did not meet the criteria of class E of the General Permitted Development Order 1995 as recently amended. Do you consider this approach correct? NW.

Curtilage definition

 A listed building curtilage and a dwellinghouse curtilage can be different. For example a listed barn may not have had a historic curtilage, but if it is converted to a dwelling a domestic curtilage may be created around it. This new curtilage could be classed as the curtilage of the dwellinghouse but not necessarily the curtilage of the listed building. The same applies if a houseowner extends their curtilage beyond the house’s historic curtilage. In such circumstances the houseowner would seem to have permitted development rights for pools, buildings etc under Class E of the General Permitted Development Order 1995 in the newly created curtilage. It would perhaps be clearer if the legislation just stated permission was required if the property was a listed building rather than referring to curtilages. What do readers think? MP.

Does substantial excavation remove householder PD rights?

Given that most councils would consider excavation of soil 1m deep or more as engineering works requiring planning permission, if a householder wishes to build an extension under permitted development involving digging out banking to similar depths, would that mean planning permission is required? BP

What date should go on a decision notice?

Under the provisions of the General Development Procedure (England) Order 1995 an appeal should be submitted within six months of the date of the decision notice.  My Authority uses either the date that the application is determined at committee or the approval date if determined under delegation.  Whilst this may be common practice, there can be instances where the decision notice is not actually posted until a few days later and then sent second class.  NH.

LDC appeal determined by hearing?

Does anyone have recent experience of a certificate of lawfulness of existing use or development appeal determined by informal hearing? In spite of our opting for an informal hearing for a non determination case, the Inspectorate is insisting on a public inquiry citing a new internal policy. CG.

Under-enforcement –requirements to resolve harm to amenity

 If a council serves an enforcement notice requiring the demolition of a building or the cessation of a use, if an appeal is lodged on ground (f), can the inspector under enforce and substitute requirements designed to resolve harm to amenity? If so what is the distinction between a ground (a) appeal (for which a fee is payable) and a ground (f) appeal (for which there is none)? IT.

Methods of payment for sums required by obligations

My local authority will not accept payment for planning obligations without a legal agreement though other authorities will accept direct payment before permission is granted instead, especially when the sum involved is relatively modest.  What authority does the council have to insist that all applicants must enter a legal agreement to pay a commuted sum of a few hundred pounds and why can this payment not be accepted in cash. AH.

Extinguishing an existing Use

Is it possible to extinguish an existing lawful use of a site? If so how would this be done? DR

 Cladding – does the GPDO matching materials requirement preclude any such development?

With the exception of properties in conservation areas and other Article 1(5) land, the cladding of a dwelling with wood, tiles, artificial stone etc. is an 'improvement' or 'other alteration' that is, prima facie, permitted under Class A. However, (with the exception of conservatories) all Class A development is subject to the condition that the materials used in any exterior work shall be of similar appearance to those used in the construction of the exterior of the original dwellinghouse. This would appear to preclude any kind of cladding where the materials to be used (or similar) are not present on the original dwelling, which makes the specific restrictions within conservation areas somewhat pointless, except to restrict the expansion of existing cladding to other parts of a property? As with so many things in the GPDO amendments I can't believe that this was the intended effect. MP posted this on 13/3/2009.

SVPs – does their presence remove Part 1 Classes A and B permitted development rights?

The 2008 GPDO amendment states under the revised classes A and B that development would not be permitted if it consists of installation, alterations or replacements of a chimney, flue or soil and vent pipe.  Given that the majority of house extensions require alteration to or addition of a soil vent pipe, does this not mean that they all now require full planning permission? How does this tie in with the new class G?  Comments are welcome!. CN posted this on 13/3/2009

Basement extensions beyond footprint – permitted development position

Does the restriction on side extensions under A.2 of Part 1, Class A of the GPDO, as amended last year, which covers Article 1(5) land, relate to basement extensions that would project beyond the footprint, i.e. beyond the existing side elevation, albeit with the 'side extension' all underground?  CW posted this on 13/3/2009

Floodlights fixed to tennis court fence – is planning control possible?

A tennis club was refused permission for floodlighting in 1988. It has now attached high level floodlights to the existing chain link fence surrounding the courts. The council says that if the work constitutes development it is as an alteration to the fence and permitted by virtue of Part 2 Class A of the General Permitted Development Order. Alternatively, as portable lamps not integral to the fence, they would constitute chattels and are not development. Either way, planning enforcement cannot act against them. The floodlights do not look portable and are permanently wired in. The site is surrounded by housing. Neighbours' amenity is affected by the lighting and the longer hours of play. Is the council right in stating nothing can be done under planning legislation? RA posted this on 13/3/2009.

Non-compliance with agricultural occupancy condition – ten year rule operates - later compliant occupation.

If a dwelling has a lawful development certificate in relation to the breach of an agricultural occupancy condition for more than ten years, what is the situation if the property is later occupied by someone who complies with the condition? Would this effectively nullify the certificate? RW posted this on 3/2/2009.

Pitched roofs on flat roofs- GPDO position?

My authority receives many enquiries about putting pitched roofs over existing flat roofs, mainly to attached garages or existing single storey rear extensions. Would these be considered under Class A or B of Part 1 of Schedule 2 of the General Permitted Development Order 1995 (as amended)? CT posted this on 3/2/2009.

Fees for reviewing planning applications

Can anyone give a view on charging fees for renewing planning applications? The 1995 Circular on fees said a flat rate fee of £170 was payable. The 2008 Circular makes no reference to this. Most Authorities in this area will no longer accept a flat fee and also insist on a full new application being submitted with all relevant supporting information. DH posted this on 3/2/2009.

PD rights for chimneys, flues or SVPs

Part 1 Class B of the amended GPDO referring to additions and alterations to the roof of a dwellinghouse would appear to rule out large numbers of otherwise compliant extensions. For instance it is stated at B.1 (d)(ii) that development is not permitted where it would consist of or include the installation, alteration or replacement of a chimney, flue or soil vent pipe.  Of course such works in isolation are permitted by Class G, but doesn’t the description at the very top of Class B “…consisting of an alteration or addition to its roof” mean that Class B permitted development cannot in any case include chimney, flue or SVP works and would rule out a large number of roof extensions which did involve such works? The more literal-minded you are, the more contradictions there seem to be!  Roger Allen London Borough of Islington posted this on 13/1/2009

Fees

Minimum start on a building

What constitutes a minimum start on a building site to keep a planning permission alive? RH.

Sandwich bars

I have an application where the applicant is using the premises to eat and sell cold foods on and off the premises. Whilst he has provided details of what is being sold on and off the premises, as well as indicated the number of seats. Are you aware of any appeals or cases, such as Starbucks-type operations, where an inspector has taken a decision about whether the use is A1? YB.

Illuminated advertisements

What illuminated advertisements can be displayed within an area of special advertisement control (ASCA) under the Control of Advertisements Regulations 2007? For instance, do the regulations prevent illuminated advertisements on public houses?   JM.

Section 106 agreements

2008 Fee Regulations

The 2008 amendment to the Fee Regulations introduced fees for councils to confirm compliance with conditions attached to a planning permission.  Is there an obligation, as with normal planning fees, on an authority to make such charges or is making a charge discretionary? JG.

Application submission

This council has received two applications for change of use of agricultural land, one for “residential housing use” and one for “B1, C1, C2, C3 and D1”. Each application has a change of use fee of £335, application forms, design and access statement and red line site plan. No other detailed information has been submitted relating to the physical development of each site. Rightly or wrongly, we have registered the applications. This level of information for a full change of use application appears totally insufficient to determine the applications, and appears to undermine the recent changes to outline applications which now require a great level of detail. Has the council erred in registering the applications on this basis? Can the council now request further information from the applicant and, if such details are not received, refuse to determine the application or refuse it on grounds of insufficient information? RW.

Highway defintion
What constitutes a 'highway' for purposes of interpreting the General Permitted Development Order? RF.

Pre-commencement conditions
I have submitted an application to discharge all pre-commencement conditions for an application approved in 2006. We anticipate confirmation shortly that the information is sufficient for commencement. My client wants to demonstrate that a material operation has taken place to keep the permission extant. Does the laying out or construction of the access count as a material operation, or would it be prudent also to construct a bike store? DW.

High voltage power lines

Conservation area consent
A client started exercising permitted development rights to form an access to an unclassified road, which meant he had to knock a wall down. He made enough space for a car, but it was his intention to make it somewhat wider.  He has taken some time to do this and during the time the area was made a conservation area.  Does he require conservation area consent to continue demolishing down the wall? SC.

NB Submissions may be made using a pseudonym or initials, provided that the true identity of the contributor is provided to the moderator.