Lapsed planning permission

18 Nov 2016
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United Kingdom
My neighbour obtained planning permission to build a large extension to his cottage. The work wasn't started within the three year period but shortly before his permission expired he submitted another application to demolish the cottage and replace it with a much larger one elsewhere on the same plot. The public consultation period for that application has just expired although the planning authority is still accepting comments. In justifying the size of the replacement dwelling he is using the size of the original cottage plus the permitted but unbuilt extension as his starting /reference point. He claims that the permission to extend is still extant, which it was (just) at the time he submitted his new application but it is no longer and the local authority have been sticking to their timescales. The application is posted as a new application, not as a revision to the previous one. Is he right in claiming that his old permission is extant and can be used in establishing the 'reference' size of the new replacement dwelling?
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It surprises me how much people get vexed by this timing issue. Think it about alternative paths to the new planning application.
a) He did the extension - you would not be asking the question
b ) Assume the previous planning application did lapse. He could submit the same application again to re-establish his permission. It is "very" unlikely that the re-submitted application would be refused. You would not be asking the question.
Thank you for this speedy response GeoffJ. I accept the point you make except that I have perhaps over-simplified the situation. Guidelines and policies associated with extensions to buildings outside of development areas have changed in this authority since the first permission was granted. The cottage to be demolished is attached to a listed building, part of which has been demolished, it has since come to light,without listed building consent being applied for or granted in respect of the part demolished. A revival of the lapsed permission by re-submission would not, I think, necessarily receive the same response.
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If policy has changed in an important respect, then it is "very" likely that the re-submitted application would be refused.
I agree - but it becomes a measure of "important" change? - if the owner had lifted one paving slab (or similar) he could argue that the works have commenced.
What has become obvious is that the initial application for the extension was simply to get a larger (virtual) building to replace. The replacement is supposed to be similar in size to the one demolished; extensions are less restricted. I don't believe there was ever any intention to extend.
These are big houses in open countryside - big money involved.
We will see. I will keep this space informed.
Many thanks for your interest.
@GeoffJ He could, but he would lose that argument. While 'a matter of fact of and degree', lifting a paving slab would not constitute a meaningful start. Anyway, seems academic now.
The presence of a Listed structure next door complicates things enormously. Works affecting the setting of a Listed Building are taken into account even though the building itself, the cottage, is not listed under the 1990 Planning, Listed Buildings and Conservation Areas Act.
The permission for the extension could have been renewed prior to it expiring.
Commencement of a planning permission is as easy as putting the footings in. A Building Control Dept inspection or paperwork pertaining to this is hard evidence that the council Planning Dept would acknowledge.
Note that undertaking work requiring listed building consent without said consent is (potentially) a criminal offence.
According to the information provided the cottage the subject of the expired planning permission and the new application for its complete replacement is not Listed.
The gaff next door is Listed and yes has had partial demolition without LBC but the cottage owner doesn't own that (he hasn't said he has anyway). So any enforcement action from the council about the Listed Building is nothing to do with the cottage owner.
If all else fails join the Freemasons. A few rounds bought for the council officers and coppers at the Lodge bar will work wonders.
If the foundations have not been started and 3 years have lapsed then typically this would mean the planning approval has not been implemented and no longer can be. They applicant cannot start the works now and submitting an application a few days before expiry does not change that. (They should have started the works for faces sake or submitted the application months ago to get a determination before the first application expired, not a few days.)

(There is no way an extension of time can exist to the application - this has not been possible since 2010. All applications must now be fully resubmitted if more time is needed.)

The time of submission on the new application is irrelevant in my view, it may have been extant at time of submission, but it will not the case when the application is being considered.

As others have pointed if the relevant policy hasn't changed then if the applicant resubmits the same application then it should be accepted (assuming the original application was properly determined). If policy has changed and they wish to use an extension as a reference then they should get a new approval for this first. (If they cannot get that approved then it cannot be used as a reference!)

In my view them stating the approval existing at time of submission / on the application documents is completely fine, but they cannot argue it still exists now. The application should be determined on current policy and facts. (The only time I think an applicant could argue otherwise would be at an appeal for non determination where it was the council who failed to determine the application within the statutory 8 weeks and that caused the original application to lapse).

In commenting on the application you could do the following:
  • State the existing approval is no longer valid (stating relevant dates).
  • Identify that policy has changed since the previous application was determined and therefore it cannot be assumed that it would be automatically approved again.
  • Point out that the previous approval is therefore not relevant to the application and therefore request that it should not be refereed to when considering the application.
  • Request the new application it be determined under current policies only (there might be specific policy on replacement dwellings in open countryside)
For dates, it might also be worth checking when the application was actually "validated" rather than submitted - as it may even be they didn't submit a valid application originally and the actual validation date was after the expiry of the original approval which would strengthen the argument as validation date is more important than submission date.
Many thanks for this - this seems to be a logical explanation of what should happen and I had already drafted a letter along these lines. I will beef it up a little with some of your phrases and submit it. I'll let you know what happens.

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