What constitutes implementation of a planning approval?
Discussion
Such a grey area, I am hoping a planning expert can offer some insight.
The context is, I have a plot of land with planning approval granted in June 2015 for a 4 bed detached house.
I now want to change the design before I make a start so submitted a new planning application.
However since 2015 my LA's new development plan has been adopted and they now want 40% of the house value under a 106 agreement to cover affordable housing before they will approve any redesign, as under the new rules in place it adds one or more new houses to the area (under the previous rules in which the house was granted permission this cash up front demand only kicked in for plots of 50 or more units! so they did not get a penny)
I argued that it was simply replacing an existing approval so did not add any more properties therefore they were not entitled to the £40k ransom demand they were now making.
As a result they refused my application.
I appealed but this was dismissed as the inspector said I had not implemented the existing approval first, so the LA could legally make the demand.
However the inspector heavily hints in his refusal I can of course still implement the current approval, and I am reading this as "make a start then re apply for the new design" and as the current approval has now begun, the redesign does not add any more extra units therefore the council cannot push for a 106 agreement under a new application.
Its all sheer bureaucracy and common sense would not force me to go to such measures but as we all know, common sense does not play a part in UK planning!
As an aside, we have in fact already made a start to some degree as one of the conditions of approval was the paving of the parking area being retained by the next door neighbour who owned the plot originally.
This condition has been met and been confirmed in writing by the LA, would that constitute implementation? or do we need to dig founds first then re apply?
The footprint of the new design is different to the current approval so any founds dug would be a waste but still far cheaper than the £40k the LA are demanding.
Anyone come across such a situation before?
The frustrating thing is that under a CIL set up they would only be entitled to around £7.5k but they have elected to keep using 106 instead. As its a self build, under CIL they would not get a penny either !!!!!
The context is, I have a plot of land with planning approval granted in June 2015 for a 4 bed detached house.
I now want to change the design before I make a start so submitted a new planning application.
However since 2015 my LA's new development plan has been adopted and they now want 40% of the house value under a 106 agreement to cover affordable housing before they will approve any redesign, as under the new rules in place it adds one or more new houses to the area (under the previous rules in which the house was granted permission this cash up front demand only kicked in for plots of 50 or more units! so they did not get a penny)
I argued that it was simply replacing an existing approval so did not add any more properties therefore they were not entitled to the £40k ransom demand they were now making.
As a result they refused my application.
I appealed but this was dismissed as the inspector said I had not implemented the existing approval first, so the LA could legally make the demand.
However the inspector heavily hints in his refusal I can of course still implement the current approval, and I am reading this as "make a start then re apply for the new design" and as the current approval has now begun, the redesign does not add any more extra units therefore the council cannot push for a 106 agreement under a new application.
Its all sheer bureaucracy and common sense would not force me to go to such measures but as we all know, common sense does not play a part in UK planning!
As an aside, we have in fact already made a start to some degree as one of the conditions of approval was the paving of the parking area being retained by the next door neighbour who owned the plot originally.
This condition has been met and been confirmed in writing by the LA, would that constitute implementation? or do we need to dig founds first then re apply?
The footprint of the new design is different to the current approval so any founds dug would be a waste but still far cheaper than the £40k the LA are demanding.
Anyone come across such a situation before?
The frustrating thing is that under a CIL set up they would only be entitled to around £7.5k but they have elected to keep using 106 instead. As its a self build, under CIL they would not get a penny either !!!!!
The vendors of the plot we're looking at have just been through similar.
They dug a little bit of driveway out, demolished part of a building on the plot, and that was that. No foundations, no utility connections...
I think the safe thing is to informally agree with the council what needs doing. Get it done. Apply for a Certificate of Lawful Development.
They dug a little bit of driveway out, demolished part of a building on the plot, and that was that. No foundations, no utility connections...
I think the safe thing is to informally agree with the council what needs doing. Get it done. Apply for a Certificate of Lawful Development.
barryrs said:
Could you not submit a Section 73 application to vary the condition that relates to the approved drawings?
Upon approval it would also buy you additional time in which to implement the approval.
^^^ This makes sense. Upon approval it would also buy you additional time in which to implement the approval.
FWIIW, the established definition of 'commencement' is any form of 'operational development' related to the approval. The established definition of 'operational development' is anything that results in physical changes to the land itself. This can be demolition (where a building needs to be demolished in order to implement the approved works), excavation of foundations trenches, or even something like tree works or archaeological works, where these are pre-commencement conditions (I know that sounds contradictory: how can pre-commencement works constitute commencement? But it's generally accepted that they can).
... but the usual approach, just to make it incontrovertible, is to actually cast foundations, or form an entrance drive bellmouth, or something like that. Some physical work that demonstrably relates to the approved 'proposed' plans.
Do bear in mind though that whatever you do must itself be 'authorised development', which means that you need to have discharged all pre-commencement conditions first. If, for instance, you were to cast footings without having discharged (say) a pre-commencement materials condition, the footings would be 'unauthorised development' and wouldn't count as a legal commencement.
However...
PAUL500 said:
I argued that it was simply replacing an existing approval so did not add any more properties therefore they were not entitled to the £40k ransom demand they were now making.
As a result they refused my application.
We would need to check case law, but I suspect that you will find that in the situation you describe, they may be seeking that you fully implement, not just commence, the approval by actually completing and occupying the dwelling.As a result they refused my application.
The reason I say that is that it's well established that a dwelling doesn't 'exist' as a dwelling, or benefit from the Permitted Development rights that pertain to a dwelling, until it has actually been occupied.
Perhaps more relevantly, you're arguing that you are not imposing the additional demands upon local infrastructure and facilities that the S106 is intended to address, because you're not creating an additional dwelling subsequent to the change of policy. You therefore have to demonstrate that another dwelling legitimately existed to place those demands upon local infrastructure, before it could be 'replaced' without creating any additional impact.
I can point you in the direction of a very good Planning Barrister (no connection other than I've worked with her before, and been impressed) if you wish to seek a more definite view, though.
I'd definitely be inclined to explore the Section 73 approach, first, though.
timetex said:
The vendors of the plot we're looking at have just been through similar.
They dug a little bit of driveway out, demolished part of a building on the plot, and that was that. No foundations, no utility connections...
I think the safe thing is to informally agree with the council what needs doing. Get it done. Apply for a Certificate of Lawful Development.
This is right, you really don't need to do much to 'commence work'. I think the Town and Country planning act will set out the rules, but if you dig some foundation that would do it. They dug a little bit of driveway out, demolished part of a building on the plot, and that was that. No foundations, no utility connections...
I think the safe thing is to informally agree with the council what needs doing. Get it done. Apply for a Certificate of Lawful Development.
Thanks guys, it seems I have some reading up to do on a section 73. The proposal however is a total redesign, it shares nothing in common with the current approval, other than it also being a house, its no bigger in volume though of habitable footage. Every drawing would have to be changed. The LA told me that as such I had to submit a brand new application rather than modifying the current one hence why I did such. Also the current one is in the name of the previous owner not me, can I apply to vary an application I did not originally make?
The appeal inspectors words in the report are:-
"He"
(me)
"also argues that, as the appeal proposal simply replaces a dwelling for which planning permission has already been granted (without such a requirement)"
i.e the 106 demand
"there would not be a net gain of 1 dwelling. I do not agree with the latter argument. That planning permission has not been implemented and so there would be a net gain over the current situation. It is, of course, still open for Mr Stevens or anyone else to implement the 2015 permission."
Its that part which I was taking as a hint by the inspector to get some work started in order to stop the clock of the extant application.
Once that happens then re apply and as there is no longer a net gain, the 106 cannot be forced on me.
Or am I grasping at at straws?
The appeal inspectors words in the report are:-
"He"
(me)
"also argues that, as the appeal proposal simply replaces a dwelling for which planning permission has already been granted (without such a requirement)"
i.e the 106 demand
"there would not be a net gain of 1 dwelling. I do not agree with the latter argument. That planning permission has not been implemented and so there would be a net gain over the current situation. It is, of course, still open for Mr Stevens or anyone else to implement the 2015 permission."
Its that part which I was taking as a hint by the inspector to get some work started in order to stop the clock of the extant application.
Once that happens then re apply and as there is no longer a net gain, the 106 cannot be forced on me.
Or am I grasping at at straws?
Oh one other question, in the original approval one of the conditions imposed is the removal of permitted development rights in the future for the plot.
Is that condition actually enforceable? or are they just trying it on? my understanding is that removal of permitted development rights can only be done by a article 4 direction?
Is that condition actually enforceable? or are they just trying it on? my understanding is that removal of permitted development rights can only be done by a article 4 direction?
PAUL500 said:
"...there would not be a net gain of 1 dwelling. I do not agree with the latter argument. That planning permission has not been implemented and so there would be a net gain over the current situation. It is, of course, still open for Mr Stevens or anyone else to implement the 2015 permission."
I would interpret that as I have explained above: there is no occupied dwelling there to place demands on local infrastructure at present, so you would need to fully implement and occupy a dwelling under the current approval, not just dig a hole in the ground for some 'footings' before your argument became valid.But the argument and case law may turn out to be subtle and complex, so I'd be inclined to take advice from a Planning Barrister before acting one way or the other.
PAUL500 said:
Oh one other question, in the original approval one of the conditions imposed is the removal of permitted development rights in the future for the plot.
Is that condition actually enforceable? or are they just trying it on? my understanding is that removal of permitted development rights can only be done by a article 4 direction?
It depends how it's worded, but yes it's potentially legitimate and enforceable. An Article 4 Direction can be used outside of a Planning application to remove PD rights (for example, an LPA can use it on a whole area - eg. to prevent the use of UPVC replacement windows in a Conservation Area), without a Planning Application having been submitted, but where there is an application, its perfectly legitimate to withdraw some of the PD rights relating to the proposed works.Is that condition actually enforceable? or are they just trying it on? my understanding is that removal of permitted development rights can only be done by a article 4 direction?
Any Planning Condition must meet the six tests, however, and to do so they should only be withdrawing those permitted development rights that it is necessary and reasonable to withdraw.
If they've written a Condition that says (paraphrased) "all permitted development rights are withdrawn, Period.", then that's lazy Planning; unnecessary and unreasonable, and could/should be challenged.
If they've written a Planning Condition saying something like (paraphrased) "notwithstanding the provisions of the GDPO, no extensions or outbuildings, and no windows in the south-east elevation without seeking Planning Permission", whilst leaving other PD rights intact, then there's every possibility that is sufficiently necessary, reasonable and precise to meet the six tests.
You can obviously seek to vary a condition, using either the Section 73 process mentioned above (for a material minor amendment) or the Section 96A (for a non-material minor amendment). Note that there is a right of appeal on a Section 73, but not on a Section 96A.
Also note that whilst withdrawal of PD rights is a bit of a nuisance (and you'd need drawings to submit with any application - so get hold of a copy of the existing drawings in CAD format and hang on to them to use as a basis for future application drawings, if you can), if it relates to works that would have otherwise been PD if the rights hadn't been withdrawn, the actual application is free of charge - so you won't have to pay £172 for a householder Planning application every time you want to put up a greenhouse or garden shed.
Edited by Equus on Tuesday 31st October 09:56
PAUL500 said:
...Every drawing would have to be changed. The LA told me that as such I had to submit a brand new application rather than modifying the current one hence why I did such. Also the current one is in the name of the previous owner not me, can I apply to vary an application I did not originally make?
Sorry, I missed this bit.Yes, you can make a Section 73 or Section 96A application where you didn't make the original application - we do it all the time.
Whether something is a 'minor' amendment or not (and whether that amendment is material or non-material) is to some extent a matter of judgement. A Section 73 effectively creates a new Planning Approval that sits alongside the original, so to that extent (being slightly tongue-in-cheek), you can argue that so long as the basic description of the development that was used on the approval remains the same (eg. "Erection of a single detached dwelling with associated works"), its impact in terms of land use and upon neighbouring amenity, and the site redline remains the same (this latter is essential), then everything else is fair game.
Being realistic, the LPA is probably not unreasonable in saying that they don't consider it to be a minor amendment (as the link I gave above states: "There is no statutory definition of a ‘minor material amendment’ but it is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved"), but you have the right of appeal on a Section 73, so you could always test that at appeal, if you wished to do so.
worsy said:
It seems to be quite common to withdraw PD rights these days. Mine were on my self build.
Yep, not unusual at all, on any site that is considered remotely sensitive, or where they thing that the plot has been developed as far as they'd want to see it developed.In fairness, that's kind of the price we have to pay for the relaxations in PD rights... here they've not been withdrawn, you're allowed to do a lot more than you used to be, so you can end up with something that looks like a compact and bijou South African shanty town in the wrong hands.
Thank you so much Equus and everyone else for the detailed replies so far.
I received the appeal dismissal yesterday and been on a real downer ever since.
Similar designs to mine have been approved and won on appeal close by, and in far more sensitive locations, it seems I just lucked out by being the first to apply post the changes to the 106 set up and the LA wanted to make mine a test case for refusal under the new rules as I would not agree to pay what they now consider to be acceptable. Its gone from zero for a single dwelling, to now 40% of its market value as a fee toward affordable housing.
How can anyone factor in a 40% increase in development costs with no increase in end value is beyond my comprehension, it will kill all single plots here as any increase in value by getting planning is then lost to the LA under a 106.
It amounts to £40k on top for my LA, but in the next LA along, only 1 mile away they ask a flat fee of £7.5k per dwelling and nothing if its a self build! under their CIL.
How my LA managed to get their new development plan approved using such heavy section 106s for single dwellings instead of CILS is beyond me.
Anyway plan of attack now seems to be :-
a cheeky section 73 using a revised design of the rejected application design taking on board the appeal inspectors comments, as a half way house between whats been approved and what I would like, then appeal any refusal.
Then if that does not work, try another 73 with a more subtle alteration of the existing approved house to make it more personal to me (the current approval is your bog standard identikit 4 bed detached estate type house)
The LA did hint that if I apply again and they refuse again that next time they will claim costs if I appeal, any idea what sort of ball park figure that would cost me if the inspector agreed to such cost in another dismissal?
Oh here is the wording in the current approval related to removal of permitted development rights (The location is a typical B road occupied by various bland housing from the 30s through to the 70s, it could be any street in any city, nothing special or worth conserving) :-
Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (Amendment) (Wales) Order 2013 (or any Order revoking and re-enacting that Order) no building, structure or enclosure required for a purpose incidental to the enjoyment of a dwelling-house shall be constructed, erected, or placed within the curtilage as hereby extended without the prior written consent of the Local Planning Authority.
Reason:
To enable the Local Planning Authority to control the scale of development, and to ensure compliance with the terms of Policy ENV27 of the Unitary Development Plan.
5. Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (Amendment) (Wales) Order 2013 (or any Order revoking and re-enacting that Order) the dwelling hereby approved shall not be extended or altered in any way without the prior written consent of the Local Planning Authority.
Reason:
To enable the Local Planning Authority to control the scale of development and to ensure compliance with the terms of Policy ENV27 of the Unitary Development Plan.
Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (Amendment) (Wales) Order 2013 and the Town and Country Planning (General Permitted Development) Order, 1995 (or any Order revoking, amending or re-enacting that Order) no gates, new fences, walls or other means of enclosure other than as existing on site and as shown in the photographs submitted with the Design and Access Statement and approved plans shall be erected, constructed or placed on the application site without the prior written consent of the Local Planning Authority.
Reason:
To safeguard local visual amenities, and to ensure compliance with the terms of Policy ENV27 of the Unitary Development Plan.
Thoughts on this? it seems to remove every element of PD completely?
I received the appeal dismissal yesterday and been on a real downer ever since.
Similar designs to mine have been approved and won on appeal close by, and in far more sensitive locations, it seems I just lucked out by being the first to apply post the changes to the 106 set up and the LA wanted to make mine a test case for refusal under the new rules as I would not agree to pay what they now consider to be acceptable. Its gone from zero for a single dwelling, to now 40% of its market value as a fee toward affordable housing.
How can anyone factor in a 40% increase in development costs with no increase in end value is beyond my comprehension, it will kill all single plots here as any increase in value by getting planning is then lost to the LA under a 106.
It amounts to £40k on top for my LA, but in the next LA along, only 1 mile away they ask a flat fee of £7.5k per dwelling and nothing if its a self build! under their CIL.
How my LA managed to get their new development plan approved using such heavy section 106s for single dwellings instead of CILS is beyond me.
Anyway plan of attack now seems to be :-
a cheeky section 73 using a revised design of the rejected application design taking on board the appeal inspectors comments, as a half way house between whats been approved and what I would like, then appeal any refusal.
Then if that does not work, try another 73 with a more subtle alteration of the existing approved house to make it more personal to me (the current approval is your bog standard identikit 4 bed detached estate type house)
The LA did hint that if I apply again and they refuse again that next time they will claim costs if I appeal, any idea what sort of ball park figure that would cost me if the inspector agreed to such cost in another dismissal?
Oh here is the wording in the current approval related to removal of permitted development rights (The location is a typical B road occupied by various bland housing from the 30s through to the 70s, it could be any street in any city, nothing special or worth conserving) :-
Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (Amendment) (Wales) Order 2013 (or any Order revoking and re-enacting that Order) no building, structure or enclosure required for a purpose incidental to the enjoyment of a dwelling-house shall be constructed, erected, or placed within the curtilage as hereby extended without the prior written consent of the Local Planning Authority.
Reason:
To enable the Local Planning Authority to control the scale of development, and to ensure compliance with the terms of Policy ENV27 of the Unitary Development Plan.
5. Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (Amendment) (Wales) Order 2013 (or any Order revoking and re-enacting that Order) the dwelling hereby approved shall not be extended or altered in any way without the prior written consent of the Local Planning Authority.
Reason:
To enable the Local Planning Authority to control the scale of development and to ensure compliance with the terms of Policy ENV27 of the Unitary Development Plan.
Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (Amendment) (Wales) Order 2013 and the Town and Country Planning (General Permitted Development) Order, 1995 (or any Order revoking, amending or re-enacting that Order) no gates, new fences, walls or other means of enclosure other than as existing on site and as shown in the photographs submitted with the Design and Access Statement and approved plans shall be erected, constructed or placed on the application site without the prior written consent of the Local Planning Authority.
Reason:
To safeguard local visual amenities, and to ensure compliance with the terms of Policy ENV27 of the Unitary Development Plan.
Thoughts on this? it seems to remove every element of PD completely?
Edited by PAUL500 on Tuesday 31st October 18:08
PAUL500 said:
How can anyone factor in a 40% increase in development costs with no increase in end value is beyond my comprehension, it will kill all single plots here as any increase in value by getting planning is then lost to the LA under a 106.
At risk of stating the blinking obvious, S106 costs are not non-negotiable, you know? Amateurs and selfbuilders sometimes think they are, and just roll over and pay whatever is asked of them. By contrast, developers often fight S106 obligations tooth and nail, and frequently negotiate large reductions.
I had taken it for granted that if you've been as far as appealing the decision, you will have been advised of this and made attempts to negotiate already, but perhaps that was a rash assumption on my part?
Is this a self-build, by the way, or a commercial development?
PAUL500 said:
The LA did hint that if I apply again and they refuse again that next time they will claim costs if I appeal, any idea what sort of ball park figure that would cost me if the inspector agreed to such cost in another dismissal?
You must have really upset them! 
Such action is very unusual on this sort of minor application, and for that reason I can't quote you any typical figures.
It will, of course, depend on the level of the appeal you choose to seek, and how much you spend on it yourself - a Written Reps appeal on a straightforward issue will obviously cost much less than a Public Inquiry with Barristers running around. Appeals costs to the LPA in general can run from a £few hundred to a 6-figure sum, but the latter would be on Public Inquiry appeals on large and complex applications. And remember that an Inspector won't always award costs even when he is requested to do so, and may only ward partial costs even then.
I did check the Planning Inspectorate's statistical report to see if the gave any figures for the amounts awarded; they don't but it might interest you to note that costs are awarded in roughly 1 in 3 cases, but awards to the Appellant outnumbered awards to the LPA roughly 4 to 1... so the odds are pretty heavily stacked against them getting much out of you. Inspectors tend to fight shy of awarding costs against appellants unless they are really vexatious, as they don't want to be seen to be discouraging people from exercising their right of appeal.
PAUL500 said:
Oh here is the wording in the current approval related to removal of permitted development rights...
Thoughts on this? it seems to remove every element of PD completely?
It doesn't quite remove every element of PD - it doesn't appear to remove Class F rights and it may not intentionally remove Classes G & H. Thoughts on this? it seems to remove every element of PD completely?
But it's pretty toughly worded... the words '...or altered in any way' in C5 are ostensibly quite harsh and unreasonable. They could be interpreted as removing Classes G & H rights, but I do wonder if their intention was simply to remove Class A PD rights only?
If the location is as ordinary as you suggest, you may have a case for challenging some or all aspects of those Conditions, but I'd need to know full details of the application to offer a view on whether that was the case.
There would be the practical option here of simply ignoring the Conditions for minor stuff: they would need to become aware of it before enforcement action is triggered (which usually means being grassed up by a neighbour, as LPA's don't have the resources to sent Enforcement Officers prowling around looking for breaches), and if enforcement action is initiated, the first thing they will always do is to ask you to submit a retrospective Planning Application... which as I said previously, is free of charge for stuff that would have been PD if the rights hadn't been withdrawn. It would be a bit of an embuggerance, but hardly the end of the world.
Edited by Equus on Tuesday 31st October 21:14
Yes I am a self builder, and a QS by profession.
As the new planning application seemed so straightforward, simply swapping out one approved traditional 4 bed detached for another which was just more modern in design, I thought it would sail through, especially as my immediate neighbour was in support of the redesign and confirmed that in writing.
I had previously won a number of planning applications for significantly altered existing houses and did all the planning work and drawings myself on those, so it made sense to do the same for this one.
The pivitol thing though in my case was the adoption of the new development plan between the last approval and my new application which incorporated a change in policy by the LA whereby they now wanted section 106 for one unit or more rather than 50 units or more.
I checked the 106 register and not one agreement listed was for a single unit.
As I had bought the plot with full planning and paid the appropriate going rate, there was nothing in the kitty to cover now having to pay a 106 on top for something that would be worth no more than already approved once completed.
Yes my understanding was that a 106 was by agreement not by force so when the LA came back during the 8 week period with a demand for £40k based on a financial formula contained within the new adopted development plan I thought they were just trying it on, so responded by stating that as approval was already in place I did not consider the new application to be in addition to that, and that it simply replaced that which had already been approved. I chatted with numerous seasoned developers in the area who all confirmed it was unheard of to seek a 106 on a single dwelling.
I never heard another word from the LA after that until the day after the 8 week period expired when they refused the application, stating that I would not agree to pay the £40k 106. No discussion, no negotiation, nothing.
They also stated the new design was not in keeping with the area, and it overlooked neighbours as two other reasons for refusal.
As such I was advised at that time, an appeal would iron out the greyness of the 106 and whether it could be applied or not.
The inspector knocked back the claim of overlooking but supported the right for the LA to request the £40k and also then agreed with them that the new design was not in keeping with the area so the balance was in favour of dismissal of the appeal.
Hindsight is a wonderful thing but everyone I know in the game is gobsmacked at the outcome regarding the 106, it is as if the formula contained within the new development plan is cast in stone now by the LA much like a CIL and there is no longer a negotiation element which is quite bizarre given they are supposed to be negotiable.
If the new design added additional value to the proposal then I would consider making a counter offer of a 106 in a revised design application and see what an appeal inspector makes of that if it gets refused by the LA, but it does not, I just want to build a house with a bit more character as I wanted to keep this one (lost my last self build in a divorce).
The advice to try a section 73 would remove the 106 element as a reason for refusal so I guess that's the next thing to try, and if I redesign to make it more in keeping the only other reason for refusal then becomes more watered down.
Had I been making an application in a conservation area, an area of outstanding character etc then I would have used planning experts but this one is this location seemed pretty black and white at the time.
Regarding the clauses removing PD I thought the same, too far reaching and probably not worth the LA enforcing but given this run in I have had with them I am now far more cautious.
As the new planning application seemed so straightforward, simply swapping out one approved traditional 4 bed detached for another which was just more modern in design, I thought it would sail through, especially as my immediate neighbour was in support of the redesign and confirmed that in writing.
I had previously won a number of planning applications for significantly altered existing houses and did all the planning work and drawings myself on those, so it made sense to do the same for this one.
The pivitol thing though in my case was the adoption of the new development plan between the last approval and my new application which incorporated a change in policy by the LA whereby they now wanted section 106 for one unit or more rather than 50 units or more.
I checked the 106 register and not one agreement listed was for a single unit.
As I had bought the plot with full planning and paid the appropriate going rate, there was nothing in the kitty to cover now having to pay a 106 on top for something that would be worth no more than already approved once completed.
Yes my understanding was that a 106 was by agreement not by force so when the LA came back during the 8 week period with a demand for £40k based on a financial formula contained within the new adopted development plan I thought they were just trying it on, so responded by stating that as approval was already in place I did not consider the new application to be in addition to that, and that it simply replaced that which had already been approved. I chatted with numerous seasoned developers in the area who all confirmed it was unheard of to seek a 106 on a single dwelling.
I never heard another word from the LA after that until the day after the 8 week period expired when they refused the application, stating that I would not agree to pay the £40k 106. No discussion, no negotiation, nothing.
They also stated the new design was not in keeping with the area, and it overlooked neighbours as two other reasons for refusal.
As such I was advised at that time, an appeal would iron out the greyness of the 106 and whether it could be applied or not.
The inspector knocked back the claim of overlooking but supported the right for the LA to request the £40k and also then agreed with them that the new design was not in keeping with the area so the balance was in favour of dismissal of the appeal.
Hindsight is a wonderful thing but everyone I know in the game is gobsmacked at the outcome regarding the 106, it is as if the formula contained within the new development plan is cast in stone now by the LA much like a CIL and there is no longer a negotiation element which is quite bizarre given they are supposed to be negotiable.
If the new design added additional value to the proposal then I would consider making a counter offer of a 106 in a revised design application and see what an appeal inspector makes of that if it gets refused by the LA, but it does not, I just want to build a house with a bit more character as I wanted to keep this one (lost my last self build in a divorce).
The advice to try a section 73 would remove the 106 element as a reason for refusal so I guess that's the next thing to try, and if I redesign to make it more in keeping the only other reason for refusal then becomes more watered down.
Had I been making an application in a conservation area, an area of outstanding character etc then I would have used planning experts but this one is this location seemed pretty black and white at the time.
Regarding the clauses removing PD I thought the same, too far reaching and probably not worth the LA enforcing but given this run in I have had with them I am now far more cautious.
Edited by PAUL500 on Tuesday 31st October 22:53
I guess I do have the option of a two pronged attack now as well? as in apply for a section 73 with a redesign and also initiate the current approval (dig founds etc) and then re apply with the new redesign under my current application stating the existing approval is no longer extant,so the basis of the 106 demand is no longer valid.
I expect the LA to refuse both but maybe under appeal with a new inspector one of them may get through.
When I see all the tele tubbie places on Grand Designs and wonder how the hell did they get planning I am still scratching my head as to why a simple redesign of a domestic dwelling in bland suburbia gets knocked back based on not being it keeping!
I expect the LA to refuse both but maybe under appeal with a new inspector one of them may get through.
When I see all the tele tubbie places on Grand Designs and wonder how the hell did they get planning I am still scratching my head as to why a simple redesign of a domestic dwelling in bland suburbia gets knocked back based on not being it keeping!
Edited by PAUL500 on Tuesday 31st October 23:11
PAUL500 said:
...regarding the 106, it is as if the formula contained within the new development plan is cast in stone now by the LA much like a CIL and there is no longer a negotiation element...
This is quite simply incorrect. The LPA is not going to tell you where their weaknesses lie, if you don't know yourself, though.I realise that now, I guess I just need to treat the knock back on the appeal as an initial test the water strategy, the ground rules have now been established by the inspector, one reason for refusal has been removed so I now need to level the playing field and have another crack at it.
What I may do is reapply under a redesign, state the existing planning is no longer extant, so that in my view it no longer adds an additional unit, however then offer them the carrot of a sum of money under a 106 I can cover in the budget, but nothing like they are demanding, then let another appeal inspector take a look if needs be.
It all adds delays to the build but I have no cast in stone completion date for the place so can bide my time.
Its all a daft game, that in any other industry would be resolved by an around the table negotiation and conclusion.
Final fallback is then a 73 of a modified version of the existing design.
What I may do is reapply under a redesign, state the existing planning is no longer extant, so that in my view it no longer adds an additional unit, however then offer them the carrot of a sum of money under a 106 I can cover in the budget, but nothing like they are demanding, then let another appeal inspector take a look if needs be.
It all adds delays to the build but I have no cast in stone completion date for the place so can bide my time.
Its all a daft game, that in any other industry would be resolved by an around the table negotiation and conclusion.
Final fallback is then a 73 of a modified version of the existing design.
PAUL500 said:
What I may do is reapply under a redesign, state the existing planning is no longer extant, so that in my view it no longer adds an additional unit, however then offer them the carrot of a sum of money under a 106 I can cover in the budget, but nothing like they are demanding, then let another appeal inspector take a look if needs be.
By 'existing planning' do you mean the application that was refused at appeal? That one is dead and gone, yes.At risk of stating the obvious, again, you can't just pluck a sum of money out of thin air to offer them - it has to be evidenced.
I don't know how things stand in Wales at the moment, and I'm afraid I don't have time to research it for you free-of-charge, but Paragraph 031 on the following link might interest you:
link
No idea if it's relevant but on MSN News today was a piece about how Councils were not getting the full affordable housing percentage they demanded,as developers were saying that with the full whack, it wasn't viable to build, so councils had to be content with a smaller percentage, eg 20 not 35% in their development plan. As OP paid full whack for the plot, can he use the same argument?
No idea if it would work for 1 house rather than 100 though...I know sweet FA about housing,just saw the news
No idea if it would work for 1 house rather than 100 though...I know sweet FA about housing,just saw the news
kowalski655 said:
developers were saying that with the full whack, it wasn't viable to build, so councils had to be content with a smaller percentage, eg 20 not 35% in their development plan.
Yep, all quite correct. They produce an 'open book' financial assessment of the development that proves they can't afford to deliver the full S106 obligations. In the case of developers, the books are usually pretty heavily cooked, in the knowledge that LPA's have very limited resources and expertise to question them.Not exactly news, though, as it's been going on for years!
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