Development Control Casebook Forum

By Moren, Philip

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New queries

A planning condition requires a housing development to “seek to achieve” the secured by Design accreditation awarded by the local police force. However, the development cannot comply with the condition because its design concept fundamentally fails to meet the relevant requirements. A single item in the recommendations would cost 100,000 and be uneconomic. Does the phrase “seek to achieve” mean that the development need not obtain full accreditation but only include as many of the recommendations as are practicable? CR.

Secured by Design is an award scheme managed by the Association of Chief Police Officers and promoted locally by police architectural liaison officers. Its aim is to support the principles of designing out crime by use of effective crime prevention and security standards. Safer Places: The Planning System and Crime Prevention 2004 advises that planning conditions may be considered where crime prevention or the fear of crime is material to a proposed development, provided they fulfil the tests set out in Circular 11/95.

The document gives examples of model conditions but these do not include any along the lines you mention. In my view, the condition does not meet the requirements of the circular. The phrase “seek to achieve” is vague and is neither precise nor enforceable, while a requirement to do something that is unachievable because of a fundamental feature of the proposed development is clearly unreasonable. You should therefore appeal the condition. PM.

The owner of a hotel with a hard-surfaced front garden has removed the wall alongside an unclassified road to provide off- street parking and lowered the adjoining footpath to create an access. The demolition of the wall is clearly permitted by class B, part 31, schedule 2 of the General Permitted Development Order 1995. However, is the access also permitted development? AN.

Class B grants permission for a means of access to an unclassified road where this is required in connection with any development permitted by the order otherthan a means of enclosure. As you say, the demolition of the front wall is permitted development, although it may be argued that the access is not “required in connection” with such works. Rather, it is the otherway round. An enforcement decision from Gloucestershire in 2002 in broadly comparable circumstances (DCS No: 43951006) may be of interest.

The inspector held that the removal of the wall did not involve development in accordance with section 55(2)(g) of the Town and Country Planning Act 1990 or appendix A of Circular 10/95. Class B was therefore irrelevant. He further reasoned that the access that had been “formed” as a result of the wall’s removal did not involve operational development. He therefore quashed the notice. Similar considerations could apply in your case, especially as the lowering of the kerb is not in itself development. PM.

A lawful development certificate (LDC) for a caravan has been refused because there was a very short spell within the required ten- year period for which no evidence was presented. The applicants can provide this evidence, but failed to do so because they did not think that it would be necessary. The authority took nine months to determine the application and did not ask for further information. Are the applicants entitled to a free resubmission or must they take the matter to appeal? If so, do they have any redress against the authority for unnecessarily prolonging the proceedings? SF.

The fees regulations provide that a disappointed LDC applicant is entitled to a “free go” where the fresh application is made within 12 months of the date of refusal, is for the same description of development and relates to the same site. Circular 10/97 explains that the onus of proof in such applications is firmly on the applicant. It states that the fact that an LDC may be refused because the onus of proof is not discharged by the applicant does not preclude the submission of a further application if better evidence is subsequently available.

I take this to mean that there is no obligation on the part of the authority to request further information. The courts have held that short periods of inactivity in a use need not necessarily prove fatal and thus an appeal may be justified in this case, Appeal costs may be awarded on the grounds of unreasonable behaviour, although I think it unlikely that the authority’s failure to seek further information would result in a successful award. PM.

The owner of a former shop argues that permission is not required to use it for selling hot food that it is merely heated up rather than cooked. However, since the amended Use Classes Order does not make such a distinction, I consider that if hot food is principally being sold from the premises, permission is required. What is your view? DH.

Circular 03/2005 explains the updated food and drink classes which, as you say, do not differentiate between the sale of hot food that has been cooked on the premises and food that has been heated up. Paragraph 12 notes that the courts have held that the first thing to consider when determining whether a change of use has occurred is the existing primary use of the land. An assessment of this will always turn on matters of fact and degree.

The circular adds that a sandwich bar does not necessarily cease to be in the retail class merely because, for example, it also sells a limited amount of “food that is heated up”. This was confirmed in a case from Bromley in 2002 (DCS No: 33831533). But where the primary purpose is for the sale of “hot food” to take away, a material change of use to class A5 will have occurred, regardless of whether that food is cooked or heated up. I am unaware of any cases where this distinction has been discussed. PM.

Copyright Haymarket Business Publications Ltd. Oct 14, 2005