Planning - breach of conditions, what next?
Discussion
Very short summary
Residence constructed without planning. Planners indicate that they will agree to a few changes to the scheme and grant it approval for holiday accommodation only. Approval is granted with conditions.
Some of the conditions are because the site is within the boundary of a monument and are archaeological - supervised works etc.
Given that the work had already been done by the time this approval was granted, there is no possible way that the archaeological conditions could be met (you can't have supervised digging of footings when the footings have already been dug, concreted and built on!)
What is the process for dealing with the breach of such planning conditions?
So far, it would seem to the casual observer, that someone has dug up around and built on a scheduled monument site with no regard at all for any element of the planning process and been 'rewarded' with retrospective approval.
Residence constructed without planning. Planners indicate that they will agree to a few changes to the scheme and grant it approval for holiday accommodation only. Approval is granted with conditions.
Some of the conditions are because the site is within the boundary of a monument and are archaeological - supervised works etc.
Given that the work had already been done by the time this approval was granted, there is no possible way that the archaeological conditions could be met (you can't have supervised digging of footings when the footings have already been dug, concreted and built on!)
What is the process for dealing with the breach of such planning conditions?
So far, it would seem to the casual observer, that someone has dug up around and built on a scheduled monument site with no regard at all for any element of the planning process and been 'rewarded' with retrospective approval.
Unfortunately, there is no third party right of appeal - compliance with conditions, after consent is granted, is almost entirely between the applicant and the planning authority.
Presumably, the relevant statutory bodies such as English Heritage have been consulted on the application? However, if the consent is recent, then it would be "unfortunate" if they found out that their conditions can't be met - you see, some of them have powers to have applications "called in" (even after consent is granted) for review by (legally) the Secretary of State, but in practice, the Planning Inspectorate.
Unfortunately Engilsh Heritage etc don't have a big enforcement team so they rely on people bring such matters to their attention.
Presumably, the relevant statutory bodies such as English Heritage have been consulted on the application? However, if the consent is recent, then it would be "unfortunate" if they found out that their conditions can't be met - you see, some of them have powers to have applications "called in" (even after consent is granted) for review by (legally) the Secretary of State, but in practice, the Planning Inspectorate.
Unfortunately Engilsh Heritage etc don't have a big enforcement team so they rely on people bring such matters to their attention.
Well, according the local planning people
"Planning consent 07/05998/PLF was approved and works commenced on site. Conditional information was submitted in 2008 to satisfy the imposed conditions, however further details were necessary and requested by Planners Officers in regard to the details required. Works were completed by 2010 but the works carried out did not accord with the approved plans and pre conditions had not been discharged therefore the 2007 application had not been implemented. In legal terms they did not have planning approval for what they had built and as such none of the conditions imposed bite. To resolve the unauthorised works a further application was submitted in 2010 (10/02884/PLF) to retain the works as built and this was approved by committee without any archaeological condition imposed.
Please note that it is at the Councils discretion to take formal action or not as it thinks fit. The Council in this instance chose to approve a retrospective planning application and did not consider it necessary to re-impose archeological conditions. "
"Planning consent 07/05998/PLF was approved and works commenced on site. Conditional information was submitted in 2008 to satisfy the imposed conditions, however further details were necessary and requested by Planners Officers in regard to the details required. Works were completed by 2010 but the works carried out did not accord with the approved plans and pre conditions had not been discharged therefore the 2007 application had not been implemented. In legal terms they did not have planning approval for what they had built and as such none of the conditions imposed bite. To resolve the unauthorised works a further application was submitted in 2010 (10/02884/PLF) to retain the works as built and this was approved by committee without any archaeological condition imposed.
Please note that it is at the Councils discretion to take formal action or not as it thinks fit. The Council in this instance chose to approve a retrospective planning application and did not consider it necessary to re-impose archeological conditions. "
tenpenceshort said:
That kind of tells you all you need to know!
Well sort of yes.It tells me that the council involved doesn't care that someone has dug up and built on a scheduled monument with no concern for archaeological matters.
It doesn't tell me that is the end of the matter.
I will be in contact with English Heritage to ask if that process / outcome is OK from it's perspective. If EH is happy with it, then that's that. If English Heritage is not happy with it, then the ball is in its court.
As it stands just now, it seems that the developer has paid scant regard to the planning process at all really and, in return, has been granted retrospective for something that might never have been approved at all and certainly wouldn't have been approved to be built without regard to archaeological matters arising because the site is classed as a monument (of some sort or other).
So, a quick update on this
English Heritage isn't happy with the situation, nor is the local Archaeological Partnership. Neither was consulted by the council on the retrospective planning application.
However, because retrospective planning is now granted with no archaeological conditions, that is it. Nothing can now be done.
It does seem odd that one can build something that is totally different from the planning application and, by doing so, that planning approval becomes null and void. But that the whole thing can then be put right with a retrospective application.
I suppose the risk is that the retrospective doesn't get approval.
In this case, it has come good for the developer. A house with planning now exists that is at least double the floor area of the house that planning was initially approved for. Moreover, none of those bothersome and potentially costly archaeological conditions attached to the original planning were even given a second glance during the build and there isn't even a slapped wrist for that!
English Heritage isn't happy with the situation, nor is the local Archaeological Partnership. Neither was consulted by the council on the retrospective planning application.
However, because retrospective planning is now granted with no archaeological conditions, that is it. Nothing can now be done.
It does seem odd that one can build something that is totally different from the planning application and, by doing so, that planning approval becomes null and void. But that the whole thing can then be put right with a retrospective application.
I suppose the risk is that the retrospective doesn't get approval.
In this case, it has come good for the developer. A house with planning now exists that is at least double the floor area of the house that planning was initially approved for. Moreover, none of those bothersome and potentially costly archaeological conditions attached to the original planning were even given a second glance during the build and there isn't even a slapped wrist for that!
Gurrrr, you sound so angry about this OP 
Have you had a similar application refused, does this dwelling block your view, or is there another reason why this is causing you sufficient grief to go mischief making to English Heritage and the like!
Take a step back. The original application was approved before anything was built so due process had been undertaken and the planning authority had determined that it was acceptable for a dwelling to be built on that plot. If EH had an objection of sufficient weight regarding archaeological significance, that original approval would not have been granted would it?
EH may have raised an objection that was considered by the planning officer / committee but that comment was clearly of insufficient weight to cause that application to be refused. Their comment on the original application may have lead to the condition being imposed regarding archaeological investigations but that does not mean that the works would be stopped, it means that the works can proceed with due regard to what may be found.
The developer has taken a huge risk building something different, risking the planners refusing the retrospective application as you say, but remember consent had already been granted for a dwelling so the risk was relating to design and appearance. EH are one of many consultees during an application and just because they are not happy, doesn't mean that due process hasn't been followed.
The planners can't ask for excavations to be un-dug on a retrospective application so I'm not sure what you're hoping to achieve by your campaign.
Have you had a similar application refused, does this dwelling block your view, or is there another reason why this is causing you sufficient grief to go mischief making to English Heritage and the like!Take a step back. The original application was approved before anything was built so due process had been undertaken and the planning authority had determined that it was acceptable for a dwelling to be built on that plot. If EH had an objection of sufficient weight regarding archaeological significance, that original approval would not have been granted would it?
EH may have raised an objection that was considered by the planning officer / committee but that comment was clearly of insufficient weight to cause that application to be refused. Their comment on the original application may have lead to the condition being imposed regarding archaeological investigations but that does not mean that the works would be stopped, it means that the works can proceed with due regard to what may be found.
The developer has taken a huge risk building something different, risking the planners refusing the retrospective application as you say, but remember consent had already been granted for a dwelling so the risk was relating to design and appearance. EH are one of many consultees during an application and just because they are not happy, doesn't mean that due process hasn't been followed.
The planners can't ask for excavations to be un-dug on a retrospective application so I'm not sure what you're hoping to achieve by your campaign.
I have a project ongoing at the moment where the LA imposed a pre-start planning condition stating that a watching brief must be carried out on all excavations and the findings submitted for approval!
So we were expected to excavate all foundations and drainage submit the report for approval before commencing development?
My point being that had the LA stated the above could it have been missed or an administration error at the time; are you sure no archaeological works were carried out during excavation.
So we were expected to excavate all foundations and drainage submit the report for approval before commencing development?
My point being that had the LA stated the above could it have been missed or an administration error at the time; are you sure no archaeological works were carried out during excavation.
A touch more detail is needed - the building is not (yet) a dwelling.
I am mildly disgruntled by the whole development.
It has resurfaced in my mind as the retrospective planning was granted on condition that the building be used only as a holiday let and the owner has now applied to convert it to a permanent residential dwelling.
At that time the retrospective permission was granted, I wrote to the Planning people and suggested that it was only a matter of time before an application was made to convert the holiday let to a residential dwelling. Lo and behold, it has happened.
On the topic of the archaeological conditions, EH etc. state
"We have no record of any attempt to address the previous archaeological condition in any way. No WSI has ever been filed with us.
The heritage section of the Design & Access Statement is hopelessly inadequate and is not acceptable. Details of what should have been in here can be found in PPS 5 and the accompanying Historic Environment Planning Practice Guide; both can be downloaded from the Internet."
My position is that the developer has gamed the system. I (somewhat grudgingly) concede that this has been done at considerable risk and would maybe go so far as to say with some skill and effort too.
But it surprises me how easily the obstacles to this progress have been brushed aside and I wonder how easily this final hurdle of getting the property reclassified to be a permanent residence will prove to be.
I am mildly disgruntled by the whole development.
It has resurfaced in my mind as the retrospective planning was granted on condition that the building be used only as a holiday let and the owner has now applied to convert it to a permanent residential dwelling.
At that time the retrospective permission was granted, I wrote to the Planning people and suggested that it was only a matter of time before an application was made to convert the holiday let to a residential dwelling. Lo and behold, it has happened.
On the topic of the archaeological conditions, EH etc. state
"We have no record of any attempt to address the previous archaeological condition in any way. No WSI has ever been filed with us.
The heritage section of the Design & Access Statement is hopelessly inadequate and is not acceptable. Details of what should have been in here can be found in PPS 5 and the accompanying Historic Environment Planning Practice Guide; both can be downloaded from the Internet."
My position is that the developer has gamed the system. I (somewhat grudgingly) concede that this has been done at considerable risk and would maybe go so far as to say with some skill and effort too.
But it surprises me how easily the obstacles to this progress have been brushed aside and I wonder how easily this final hurdle of getting the property reclassified to be a permanent residence will prove to be.
JPJPJP said:
Well, according the local planning people
"Planning consent 07/05998/PLF was approved and works commenced on site. Conditional information was submitted in 2008 to satisfy the imposed conditions, however further details were necessary and requested by Planners Officers in regard to the details required. Works were completed by 2010 but the works carried out did not accord with the approved plans and pre conditions had not been discharged therefore the 2007 application had not been implemented. In legal terms they did not have planning approval for what they had built and as such none of the conditions imposed bite. To resolve the unauthorised works a further application was submitted in 2010 (10/02884/PLF) to retain the works as built and this was approved by committee without any archaeological condition imposed.
Please note that it is at the Councils discretion to take formal action or not as it thinks fit. The Council in this instance chose to approve a retrospective planning application and did not consider it necessary to re-impose archeological conditions. "
The logic of that sentence is that all you have to do to get round any pre-conditions is to to fail to build in accordance with the plans and the said pre-conditions! That's Kafkaesque and surely can't be right. This leads on to the question of why no archaeological condition was imposed for the amended application. Presumably this was because they were presented with a fait accompli and a deliberate decision was taken to avoid potential costly proceedings/litigation."Planning consent 07/05998/PLF was approved and works commenced on site. Conditional information was submitted in 2008 to satisfy the imposed conditions, however further details were necessary and requested by Planners Officers in regard to the details required. Works were completed by 2010 but the works carried out did not accord with the approved plans and pre conditions had not been discharged therefore the 2007 application had not been implemented. In legal terms they did not have planning approval for what they had built and as such none of the conditions imposed bite. To resolve the unauthorised works a further application was submitted in 2010 (10/02884/PLF) to retain the works as built and this was approved by committee without any archaeological condition imposed.
Please note that it is at the Councils discretion to take formal action or not as it thinks fit. The Council in this instance chose to approve a retrospective planning application and did not consider it necessary to re-impose archeological conditions. "
The Surveyor said:
Take a step back. The original application was approved before anything was built so due process had been undertaken and the planning authority had determined that it was acceptable for a dwelling to be built on that plot. If EH had an objection of sufficient weight regarding archaeological significance, that original approval would not have been granted would it?
EH may have raised an objection that was considered by the planning officer / committee but that comment was clearly of insufficient weight to cause that application to be refused. Their comment on the original application may have lead to the condition being imposed regarding archaeological investigations but that does not mean that the works would be stopped, it means that the works can proceed with due regard to what may be found.
True, but equally the works CAN be stopped/reversed (especially if EH were to pursue the matter with the LA). But to do that they need to know about what is happening on the ground. This requires people in the locality to be proactive in a)knowing what permissions have been granted and b)keeping tabs on the development. The LA simply won't have sufficient resources to keeps a constant watch on each and every site. By the time they cotton on it's often too late. Nor is this thread about refusal. It's the householder or a developer not abiding by the conditions attached to the original consent. Nothing unusual there but it's particularly reprehensible where the site is of archaeological interest/significance.EH may have raised an objection that was considered by the planning officer / committee but that comment was clearly of insufficient weight to cause that application to be refused. Their comment on the original application may have lead to the condition being imposed regarding archaeological investigations but that does not mean that the works would be stopped, it means that the works can proceed with due regard to what may be found.
The Surveyor said:
The developer has taken a huge risk building something different, risking the planners refusing the retrospective application as you say, but remember consent had already been granted for a dwelling so the risk was relating to design and appearance. EH are one of many consultees during an application and just because they are not happy, doesn't mean that due process hasn't been followed.
Their displeasure may well be because they didn't know what was actually happening either and any restrictions they managed to get inserted into the original approved plans were simply ignored. The Surveyor said:
The planners can't ask for excavations to be un-dug on a retrospective application so I'm not sure what you're hoping to achieve by your campaign.
That somebody be held to account and face a financial penalty? Whether that be the developer for extracting the urine, or the local authority for failing to guard against an unauthorised development. As I mentioned above, the latter is particularly relevant if the site is of archaeological significance. Additional vigilance is needed in such cases.There needs to be a more effective regime to penalise developers who stick two fingers up at the planning process in cases such as this. Perhaps one way would be for EH to be given teeth which can bite. If the local authority won't act against them then EH could either force their hand, or step into their shoes and do it themselves.
I have just noticed that the OP has stated that it is a Scheduled Monument . That brings a whole new perspective as those have specific statutory protection. All the more reason to question why the local authority has not taken any action and given the subsequent development the retrospective nod. Maybe EH will have something to say about that.
Does the development effect you or are you just not happy with the development as such. I ask as the planners should give more consideration to an objection from a neighbour than to an objection from somebody unrelated who just doesn't 'like' the development. Assuming of course that you objected to the application originally.
Notwithstanding, I do think you're giving the developer more credit than they deserve, they don't seem to have exercised any 'skill', they have simply rolled the dice and got a '6' this time!
Paul
JPJPJP said:
A touch more detail is needed - the building is not (yet) a dwelling.
It has resurfaced in my mind as the retrospective planning was granted on condition that the building be used only as a holiday let and the owner has now applied to convert it to a permanent residential dwelling.
How does this impact on you? Will there be more or less disruption based upon it's use or is there something else which will be detrimental to you. I personally would be happier with a permanently occupied dwelling than a holiday let which may end up empty and decaying if the business fails for example.It has resurfaced in my mind as the retrospective planning was granted on condition that the building be used only as a holiday let and the owner has now applied to convert it to a permanent residential dwelling.
JPJPJP said:
On the topic of the archaeological conditions, EH etc. state
"We have no record of any attempt to address the previous archaeological condition in any way. No WSI has ever been filed with us.
The heritage section of the Design & Access Statement is hopelessly inadequate and is not acceptable. Details of what should have been in here can be found in PPS 5 and the accompanying Historic Environment Planning Practice Guide; both can be downloaded from the Internet."
The planning system is not black and white, every situation is different and each application has to be validated and determined on it's individual merits, you think that the D&A Statement is inadequate, the planners clearly did not. PPS 5 is a good guide however it's guidance only and it's application is very subjective, based upon the value of the heritage asset and the extent of influence the development has on it. Different Conservation Officers, different views, different 'value' placed on the asset, and different perception of what 'harm' the development will cause if you get the picture!. I get the feeling you feel stronger about it than the planners or indeed the EH, with the EH being more aggrieved over the process than the result. The quote from the EH is predictable, what else can they say given that the approval against which it was made was never implemented. The developer never had to discharge that condition because he never built the holiday let to which it applied. "We have no record of any attempt to address the previous archaeological condition in any way. No WSI has ever been filed with us.
The heritage section of the Design & Access Statement is hopelessly inadequate and is not acceptable. Details of what should have been in here can be found in PPS 5 and the accompanying Historic Environment Planning Practice Guide; both can be downloaded from the Internet."
Notwithstanding, I do think you're giving the developer more credit than they deserve, they don't seem to have exercised any 'skill', they have simply rolled the dice and got a '6' this time!
Paul
I am not an immediate neighbour, but very close
I may indeed be giving the developer more credit than is due, but the outcome thus far is pretty good from their perspective and would get much better if the current application is approved. The immediate neighbours and parish council are objecting - the village doesn't have the facilities and holiday lets bring income and create employment (as per the reasons given in the approval of the retrospective approval for only allowing the property as a holiday let rather than a dwelling). I haven't objected (yet), but did object when the retrospective planning was up for consideration - as did the Parish council and most of the other residents of the village.
There would be a touch more disruption from a permanent residence. There are 26 houses in the village so far, this is the 27th. It is at the far end of the village from the single entrance to the village (which is a single street that is a dead end - no through traffic)
EH's view is that once the retrospective approval was granted with no archaeological conditions attached, it is "impossible" for it to do anything. Same applies re the Scheduled Monument stuff too it would seem.
EH says it was not consulted regarding the retrospective application. The council says that such a decision is its own decision to make. That for me is the part that needs fixing. There should be no opportunity for a council to remove conditions imposed at the request of a body such as EH without at least consulting that body about the decision.
In practical terms, the conditions can't be met now anyway and there is no knowing what damage to the site might have been caused during the build or what archaeological significance the site actually was. It could have been that nothing was found and no damage was done, or it could be that significant archaeology was destroyed and treasures looted. Only the developer has a chance of knowing now.
I may indeed be giving the developer more credit than is due, but the outcome thus far is pretty good from their perspective and would get much better if the current application is approved. The immediate neighbours and parish council are objecting - the village doesn't have the facilities and holiday lets bring income and create employment (as per the reasons given in the approval of the retrospective approval for only allowing the property as a holiday let rather than a dwelling). I haven't objected (yet), but did object when the retrospective planning was up for consideration - as did the Parish council and most of the other residents of the village.
There would be a touch more disruption from a permanent residence. There are 26 houses in the village so far, this is the 27th. It is at the far end of the village from the single entrance to the village (which is a single street that is a dead end - no through traffic)
EH's view is that once the retrospective approval was granted with no archaeological conditions attached, it is "impossible" for it to do anything. Same applies re the Scheduled Monument stuff too it would seem.
EH says it was not consulted regarding the retrospective application. The council says that such a decision is its own decision to make. That for me is the part that needs fixing. There should be no opportunity for a council to remove conditions imposed at the request of a body such as EH without at least consulting that body about the decision.
In practical terms, the conditions can't be met now anyway and there is no knowing what damage to the site might have been caused during the build or what archaeological significance the site actually was. It could have been that nothing was found and no damage was done, or it could be that significant archaeology was destroyed and treasures looted. Only the developer has a chance of knowing now.
Edited by anonymous-user on Wednesday 13th August 19:31
The Surveyor said:
I get the feeling you feel stronger about it than the planners or indeed the EH, with the EH being more aggrieved over the process than the result.
EH have confined their statement to facts."We have no record of any attempt to address the previous archaeological condition in any way. No WSI has ever been filed with us. The heritage section of the Design & Access Statement is hopelessly inadequate and is not acceptable.
They are not going to reveal how they feel about the outcome to third party. If they are going to make any comment about that it will be to the local authority. The failure to file any WSI is a serious matter and I would be surprised if they decide to just let it go. .
The Surveyor said:
Notwithstanding, I do think you're giving the developer more credit than they deserve, they don't seem to have exercised any 'skill', they have simply rolled the dice and got a '6' this time!
I'm not so sure.EH website said:
Preventing unlawful works is therefore a very important part of heritage protection. It is why a failure to apply for listed building, conservation area and scheduled monument consents when they are needed is a criminal offence.
If the work undertaken was done in breach of the consent previously given it, ipso facto, did not have the necessary approval. The OP has a valid point. If EH had been aware of what was going on it might well have stepped in and requested the local authority to serve a 'stop' notice.Some local authorities are simply incompetent. Others make mistakes. I don't think the one in this case can escape censure. It is a poor state of affairs if they have no obligation to ensure that a WSI is submitted.
Red Devil said:
I have just noticed that the OP has stated that it is a Scheduled Monument .
That isn't what the OP says, he says it's within the boundary of a monument, not a 'Scheduled Ancient Monument' which is a very different thing!Regardless, the developer has obtained consent for the development he has built and that consent does not include any condition requiring any specific Archaeological investigations. The planners will know the procedures and will know what they can and can not reasonably enforce. They have decided that the value of the archaeological asset is not of significant importance to warrant any action.
Yes, it may be due to a lack of resources, or it may indeed be a greased-palm back-hander if you are wearing a tin-foil hat, but the reality is that they will know the planning procedures applicable to this particular project better than you, I, or indeed the OP.
Red Devil said:
If the work undertaken was done in breach of the consent previously given it, ipso facto, did not have the necessary approval. The OP has a valid point. If EH had been aware of what was going on it might well have stepped in and requested the local authority to serve a 'stop' notice.
Some local authorities are simply incompetent. Others make mistakes. I don't think the one in this case can escape censure. It is a poor state of affairs if they have no obligation to ensure that a WSI is submitted.
I'd totally agree about some local authorities being incompetent and they are under an obligation to ensure that the pre-commencement conditions are discharged, but for that they need to know that the works have commenced. The key here as I see it is that the developer never built anything in breach of his original approval, he has simply taken a risk that his original approval established the principle that he could build on the land, and then built something different. This is very different from him implementing that original approval and ignoring the archaeological conditions (including a request for the WSI etc) that were applied. Some local authorities are simply incompetent. Others make mistakes. I don't think the one in this case can escape censure. It is a poor state of affairs if they have no obligation to ensure that a WSI is submitted.
The sad thing here is that nobody noticed that the developer had started the works without discharging the conditions, nor did they notice that the excavations didn't match the approved plan.
The Surveyor said:
I'd totally agree about some local authorities being incompetent and they are under an obligation to ensure that the pre-commencement conditions are discharged, but for that they need to know that the works have commenced. The key here as I see it is that the developer never built anything in breach of his original approval, he has simply taken a risk that his original approval established the principle that he could build on the land, and then built something different. This is very different from him implementing that original approval and ignoring the archaeological conditions (including a request for the WSI etc) that were applied.
The sad thing here is that nobody noticed that the developer had started the works without discharging the conditions, nor did they notice that the excavations didn't match the approved plan.
My bold on The Sureveyor's text. That is indeed what has happened. And now the final stage of the process is underway: to change that retrospective planning from only allowing use of the building as a holiday let, to allowing it to be a permanent residence.The sad thing here is that nobody noticed that the developer had started the works without discharging the conditions, nor did they notice that the excavations didn't match the approved plan.
Whether the developer is intending to live there or not isn't clear. If so, then based on a chat with one of the neighbours of the property last night, I don't think popping round to his for a cup of sugar would be especially well received.
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