Council Must Consider Planning Application

People who seek advantage by going beyond the bounds of planning permission they are given can expect to be taught a very expensive lesson by the courts. However, the law does guarantee the right of a person to have a planning application considered, as was illustrated by a recent case involving the submission of a revised planning application after a flagrant breach of the terms of an earlier application.

The council had granted planning permission for a property that was to be used for storing vehicles, and a building was duly constructed of the same general outline…but for use as a dwelling house.

When it discovered the breach of planning permission, the council issued an enforcement notice requiring demolition of the building and clearance of the demolition site as well as the cessation of use of the building as a residential property.

The people who built the property appealed against the notice, using the rather novel argument that the building had been constructed in compliance with the planning permission but had subsequently changed its use to a residential property. However, the planning inspector rejected that argument and noted that the building as constructed was materially different from that for which planning permission had been granted.

Among other arguments deployed against the decision of the planning inspector was that demolition was a disproportionate response and that the building could be altered to comply with the planning permission.

The property owner then submitted two new planning applications, one for a building for storage of agricultural equipment and one for a holiday home.

The council refused to ‘determine’ the planning applications, concluding that their approval would mean that part of the structure previously ordered to be demolished would have to be retained and also that a revised application, if considered, would probably be refused. The requirement to consider a further planning application would, it argued, delay the council’s ability to enforce its earlier notice, involve it in further costs and ‘…could also be seen as an attempt to wear down opposition to an undesirable development with no real prospect of success, noting in particular that the proposal is essentially an attempt to retain a lower version of the same building’.

The property owner appealed in an attempt to force the council to consider the revised planning application for the storage building, arguing that the merits of the new planning application should be considered as it was significantly different and that the council’s approach was unreasonable and oppressive.

The judge commented that the legislation used by the council to justify its approach was aimed at a claimant ‘having multiple bites of the cherry’…but the effect in this instance would be that the property owner had none. In any planning application, ‘an individual can have their application determined once’.

The court therefore ruled that the revised application had to be considered.