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When has a planning permission been implemented?

Discussion in 'Building Regulations and Planning Permission' started by Auction, 25 Dec 2015.

  1. Auction

    Auction

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    My neighbour has obtained a planning permission to enlarge existing windows which have obscured glasses and to insert an additional window at the rear of his property with a planning condition which says that the new windows should have also obscured glasses to protect against overlooking

    Then this neighbour has obtained a lawful development certificate to enlarge the existing windows and insert four additional windows but with clear glasses

    The council told me that the fact that he has inserted windows with clear glasses is not a breach of the planning condition of the first planning permission which says that they should have obscured glasses because this planning permission has not been implemented because the windows have been enlarged more than in the approved plans of this planning permission and four windows have been inserted instead of only one.

    Hence the issue is whether or not this planning permission has been implemented because if it has been implemented the windows with clear glasses are contrary to the planning condition which says that they should have obscured glasses.

    Moreover if it has been implemented this lawful development certificate is illegal because it is contrary to a planning condition as explained in section 3(4) of the GPDO 1995 which says

    (4) Nothing in this Order permits development contrary to any condition imposed by any planning permission granted or deemed to be granted under Part III of the Act otherwise than by this Order.

    All the work concerned by the planning permission have been made i.e. the windows have been enlarged up to the size indicated in the approved plans and an additional windows has been inserted up to the size indicated in the approved plans. All the other work is additional work done after this work was done. For example if we do the development indicated in the planning permission and after we do additional work this additional work is separate from the development concerned by the planning application

    Does not this means that the development concerned by the planning permission was made and that additional work was done subsequently? Moreover the planning permission was still valid when the lawful development certificate was granted and it is known that a lawful development certificate will not expunge the existing planning permission and its conditions

    Can we say that the planning permission has been implemented and then the windows have been made bigger and additional windows have been added?
     
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  3. Nakajo

    Nakajo

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    Is it actually a problem?
     
  4. Auction

    Auction

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    Yes it is a big problem because these windows with clear glasses cause loss of privacy due to overlooking. It is why I need to prove that the planning permission with a planning condition which says that the windows should have obscured glasses have been implemented so that this neighbour is found in breach of this planning condition and forced by the council to remove these windows with clear glass

    This will prove also that permitted development rights to insert windows with clear glasses was wrongly granted to him because Section 3(4) of the GPDO 1995

    which says


    “(4) Nothing in this Order permits development contrary to any condition imposed by any planning permission granted or deemed to be granted under Part III of the Act otherwise than by this Order”

    because the insertion of windows with clear glasses is contrary to the planning condition of the previous planning permission which says that the windows should have obscured glasses
     
  5. ^woody^

    ^woody^

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    See a solicitor. You are most likely on a hiding to nothing with this technicality though.
     
  6. Auction

    Auction

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    I have already seen a solicitor but with no results. Only barristers specialised in planning could maybe help me but they are too expensive for me at this stage so I rely on the knowledge, common sense and experience of the public.

    The issue that I raise could be only a technicality but it could be nevertheless important
     
  7. ^woody^

    ^woody^

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    Then what do you hope to achieve?

    You can't force the council to do anything. You could take a complaint to the ombudsman, but he won't have to power to alter a planning decision, only suggest they pay a token amount in compensation if, and its a big if, you have suffered a loss.

    You need to be clear what options are available to you, and that will be via specialist advice from a planning Solicitor. The barrister can help with the technicalities of the planning issue, but you need to know what good it will do you if your view of the planning issue is in fact correct.
     
  8. Auction

    Auction

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    I would like first to get a reply to the issue that I raise and deal with the more complicated matters later
     
  9. ^woody^

    ^woody^

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    The council are correct. The original permission has not been implemented because the work done is so different so as there can not be a breach of condition regarding the glass. The work has then been superseded by a different application of the LDC for different work.
     
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  11. Auction

    Auction

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    The planning permission was about enlargement and insertion of windows and it is what has happened no other kind of work has been done and the work has not been done in another site

    Moreover what evidence has the Council that this planning permission was not implemented before the lawful development certificate was granted and then the windows were enlarged further and more windows were added? In this case Section 3(4) of the GPDO 1995 will kick in because these windows with clear glasses will be contrary to a planning condition of the previous planning permission which says that the windows should have obscured glasses. The Council did not make any site visit at the time the application a lawful development certificate was made
     
  12. ^woody^

    ^woody^

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    A LDC can be for completed or proposed work. ie work done differently to an existing planning permission.

    Clarify this summary for me
    • Planning permission obtained for specific work (window size "x" and one other window). Condition added to this specific work.
    • The specific work in the permission not carried out.
    • LDC granted for different work (window size " y" and four other windows)
    • This work carried out.

    Are those bullet points correct?
     
  13. Auction

    Auction

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    You say

    “• Planning permission obtained for specific work (window size "x" and one other window). Condition added to this specific work.”

    This is correct

    You say

    “• The specific work in the permission not carried out.”

    To reply to this I think that we have to take into account that there are here two pieces of legislations which matters “Section 187A of the Town and Planning Act 1990” which says that no development which are carried out under a planning permission could be carried out contrary to a planning condition and “Section 3(4) of the GPDO 1995” which says that there could not be permitted development rights contrary to any condition of any planning permission

    These are two different pieces of legislation and I think that as a consequence different requirements applied to them. For the first piece of legislation the planning permission should have been implemented at the time the complaint is made so that enforcement action is taken if the planning condition is not complied with. However for the second piece of legislation the planning permission could have been implemented at any time even in the past so that permitted development rights are refused if they are contrary to any planning conditions of any planning permission.

    And it is possible that the Council has mixed up these two pieces of legislation.

    It is obvious that the first piece of legislation does not apply to this case because at the time of my complaint to the Council the windows were not of size ‘x’ and there were more than one window added. However it is possible that the second piece of legislation applies because we do not have any evidence that in the past this planning permission has not been implemented. Moreover the enlargement of windows and addition of windows always take place progressively and before having size ‘y’ the windows should have had size ‘x’ and before four windows were added a first window should have been added. Moreover as I say in my previous post the Council has made no site visit before I made my complaint so it does not know how the windows were at this time

    Another solution which makes the things simpler is that the second piece of legislation applies even though the planning permission has not been implemented because this piece of legislation says

    “contrary to any condition imposed by any planning permission”

    So ‘any’ could mean all even the planning permissions which have not been implemented but I am not sure of that. This other solution will be very fair because after all the purpose of a LDC is to make the procession of planning applications simpler but not to overcome previous planning condition

    You say

    “• LDC granted for different work (window size “y" and four other windows)”

    This is correct

    You say

    “• This work carried out.”

    This is correct the windows have size ‘y’ and four windows were added when I made my complaint to the Council
     
  14. Nakajo

    Nakajo

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    I feel another six pages coming on...
     
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  15. ^woody^

    ^woody^

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    If those bullet points are correct, then so is the council.

    No amount of words or reference to legislation will alter that.
     
  16. Auction

    Auction

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    Even if we consider that this planning permission was not implemented it remains that it could be irrelevant whether or not it was implemented in case section 3(4) of the GPDO applies even for planning permissions which have not been implemented.

    As I say in my previous post this piece of legislation says

    “contrary to any condition imposed by any planning permission”

    What include also old planning permissions what means that it would be impracticable for the council to check if a very old planning permission has been implemented in the past because additional work could have been done after that it was implemented etc...specially that the processing of an application for a lawful development certificate is not intended to be as in-depth as a full planning permission application
     
  17. Auction

    Auction

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    It is much easier for the planning officer in charge of the processing of the application for a lawful development certificate to simply look into the relevant planning history if there is a planning condition which is contrary to lawful development certificate and if yes simply to refuse the lawful development certificate
     
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