Planning Decision - Non Detemination

[bruba]

Hi guys

I need advice on the above, specifically that the Council have failed to make a decision on a planning application/development adjacent to my property. It is my understand that as part of s.78(2) Town and Country Planning Act 1990, if a decision has not been made in a specified timeframe, then it becomes a "Non Determination" application and the defendant (presumably the developer) has the right to appeal to the Secretary of State.

In this scenario it would not be advantageous for the defendant to appeal, as the application is incorrect/invalid (e.g. wrong type of application and application does not represent what is actually been built on site). However, as the development does affect my amenity; one example would be that the development is too close to my boundary (not on the approved drawings), I has been unable to persuade the Council make an enforcement action or even a decision so I could then later initiate a Judicial Review.

If a planning application is a "Non Determination", what are the implications for the developer?

What remedies do I have as the neighboring resident?

One remedy would be to report this to the Ombudsman, which could take years, but my main goal is to have enforcement action taken and for the application to be withdrawn and resubmitted as a new application to be reviewed by a committee, in which currently it has not due to the application amendment type.

Any advice would be much appreciated.

 

[blup]

Has the council treated it as an invalid application, in which case you need to press for enforcement action if no further application is forthcoming. No guarantee the Council will act, if not the ombudsman is a potential, but pretty toothless, route in terms of your concerns about the development.

Blup

 

[bruba]

Thanks for the reply.

I don't think the Council has treated it as an invalid application, they just haven't made a decision, despite my pleas for enforcement action.

How would I know if the application was stated as invalid? The application status is "Waiting Decision" and the "Determination Deadline" was over 12 months ago.

I agree that it's probably a waste of time going down the Ombudsman route, so I am not sure where to go with this, surely there must be law to protect the plaintiff? Is the Council ignoring my objections/complaints an example of Nonfeasance? It makes a mockery of Planning regulations if the Council can just choose not make a decision. I am sure if a decision was made ay least I could bring a JR or the Council take enforcement action. This appears to be stalemate.

 

[oldbutnotdead]

Local paper. MP. Ombudsman (you have to follow the channels). Or (not a clue of the legality) but common sense might indicate that if the council have failed to make a decision you as an interested party might be able to appeal the non-determination to the Secretary of State?

 

[blup]

Contact planning (again?) to clarify their intentions. If nothing forthcoming, or more delay, they will have to react if ombudsman gets involved. Certainly cheaper than the legal route.

Blup

 

[mrrusty]

Seems odd. Have you checked that a decision hasn't actually been made and the portal is just not showing it. My own applications show up as "status unknown" on my LA portal, but are all approved and built.

 

[^woody^]

What remedies do I have as the neighboring resident?

None.

You had your chance (your involvement) to comment during the consultation period, and now it's nothing to do with you. If the developer wants to appeal the non-determination he can, or he can or may have given the planning authority an extension of time, or he can just wait. Either way it's between the applicant and the planning authority not any third party.

It's not a Ombudsman issue.

 

[oldbutnotdead]

None.

You had your chance (your involvement) to comment during the consultation period, and now it's nothing to do with you. If the developer wants to appeal the non-determination he can, or he can or may have given the planning authority an extension of time, or he can just wait. Either way it's between the applicant and the planning authority not any third party.

It's not a Ombudsman issue.

Sounds to me like this isn't a straightforward application- looks like a retrospective application for something that's already been built & the application is showing a less contentious build than what is actually there...

 

[^woody^]

Sounds to me like this isn't a straightforward application- looks like a retrospective application for something that's already been built & the application is showing a less contentious build than what is actually there...

Either way the process is the same.

The OP mentions trying to pursued the council to take enforcement on something which they have not even determined is permitted or not!

 

[jeds]

I'm confused. Has this building been built next to you without planning?

 

[garyo]

How will he sell these houses if they don't have planning permission? To what extent does it affect your amenity? Maybe it's an opportunity to settle with the developer so that you become compensated and he can progress with his sales.

 

[bruba]

@oldbutnotdead "Local paper. MP. Ombudsman (you have to follow the channels). Or (not a clue of the legality) but common sense might indicate that if the council have failed to make a decision you as an interested party might be able to appeal the non-determination to the Secretary of State?"
I am thinking about the media. MP not interested, my experience of the Ombudsman is that they are a waste of time. I think appealing to the secrtary of state my be an possible option. I was under the impression this was only for the defendant.

@woody "You had your chance (your involvement) to comment during the consultation period,"
Incorrect. I sent a solicitors objection outlining the issues during the consultation and it was ignored, just like all the other solicitors letters have been ignored. Which is why I want to initate a JR with my legal team, but can't as no decision has been made and it is now a non-determination.

@mrrusty "Seems odd. Have you checked that a decision hasn't actually been made and the portal is just not showing it. My own applications show up as "status unknown" on my LA portal, but are all approved and built."
The council have not made a decision 100% and have ignored all legal letters, hence the JR.

@oldbutnotdead "Sounds to me like this isn't a straightforward application- looks like a retrospective application for something that's already been built & the application is showing a less contentious build than what is actually there..."
It is a retrospective application, however the developer used the wrong type of application. He submitted a s73 (looking forward) and not a section 73a (retrospective).. Counsels option agrees with this. that the wrong application type was used. See Court of Appeal rules on the interplay between s. 73 and s. 73A of the TCPA 1990 - Landmark Chambers | Barristers Chambers London

 

[bruba]

I'm confused. Has this building been built next to you without planning?

The approved drawings don't actually correspond with what has actually been built on site along with the fact that a section 73a should of been used for retrospective planning work.

 

[bruba]

How will he sell these houses if they don't have planning permission? To what extent does it affect your amenity? Maybe it's an opportunity to settle with the developer so that you become compensated and he can progress with his sales.

He has sold 75% of the properties. People are actually living in the premises now despite there being no planning permission granted. Building control has been approved, but the inspectors nnever came on site, hence the reason for lots of building control issues like boiler flues close to boundary and facing window.

The development is riddled with lots of issues , Right of Light, Planning Issues, Building Control Issues and damage to my property, right to support.

You could not script this, I know!! Which is why this will have to go into the media at some point.

 

[oldbutnotdead]

Is the developer well connected politically? I wonder whether the planners are stuck between a rock (local policy or national legislation that the build totally contravene) and the council (politicians beholden to or in cahoots with the developer).
I don't know how to do it but you need to force a decision out of them. Media might be interested in the occupied properties not having pp...