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Insights // 01 December 2021

Conditions Removing Permitted Development Rights – A Recent Appeal Decision

Partner Karen Jones, in our Planning & Environmental Law team, look at a recent appeal decision.

We have recently published a number of blog articles in respect of permitted development (PD) rights, Article 4 Directions and conditions curtailing or restricting permitted development rights. A recent appeal decision again demonstrates the careful consideration decisions makers should give as to whether conditions restricting permitted development right should be imposed.

On 14 August Cheshire East Council granted planning permission for the conversion of existing two storey outbuilding to a separate domestic dwelling subject to eight conditions. Conditions 4 and 5 were as follows:

(4) Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (England) Order 2015 (or any order revoking or re-enacting that order), no development (as defined by Section 55 of the Town and Country Planning Act 1990) as may otherwise be permitted by virtue of Class(es) A - E of Part 1, Schedule 2 of the Order shall be carried out on the dwellinghouse hereby permitted.

(5) Notwithstanding the provisions of The Town and Country Planning (General Permitted Development) (England) Order 2015 (or any order revoking or re-enacting that order), no development (as defined by Section 55 of the Town and Country Planning Act 1990) as may otherwise be permitted by virtue of Class E of Part 1, Schedule 2 of the Order shall be carried out within the curtilage of the dwellinghouse known as ‘Brook Cottage’.

An application was subsequently submitted to remove Condition 4. The Council did not remove Condition 4 in its entirety but instead amended it to:

Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (England) Order 2015 (or any order revoking or re-enacting that order), no development (as defined by Section 55 of the Town and Country Planning Act 1990) as may otherwise be permitted by virtue of Class A, Class AA, Class B or Class E of Part 1, Schedule 2 of the Order shall be carried out on the dwellinghouse hereby permitted.

The reason for retaining Class A, AA, B and E of Part 1 Schedule 2 within the condition was given as “To ensure continued control over the extent of further building on the site having regard to the circumstances of the application and in the interests of the openness of the Green Belt.”

The applicants submitted an appeal to the Planning Inspectorate to have both Conditions 4 and 5 removed.

On the 14 October 2021 the Inspector allowed the appeal and removed both Conditions 4 and 5. The Inspector identified the main issues in the appeal to whether the conditions were needed to protect the Green Belt, as that was the reason for imposing them in the first instance.

It was recognised that the relevant permitted development rights did not differentiate between Green Belt and non-Green Belt land and further that the conditions and limitations to each of the relevant classes did not require a consideration of the impact of development using the PD rights on the Green Belt.

The Inspector confirmed that the National Planning Policy Framework (NPPF) provides that there must be clear justification for the removal of permitted development right.

Turning to the development originally granted planning permission the Inspector reviewed the development that could be carried out under Classes A, AA, B and E (in respect of Condition 4) and concluded that any works carried out under those classes would not be conspicuous to the wider area or locality and further that there was no alleged harm to any listed buildings or that there would be other heritage harms.

The Inspector concluded that the Council had not clearly justified the need for Conditions 4 and 5 and accordingly the tests of reasonableness and necessity had not been met. The conditions were therefore removed.

Advice should be sought at the earliest opportunity if you are made aware by a local authority that a condition restricting future permitted development rights will be imposed, or where planning permission has otherwise been granted with such a condition.

Where a condition is imposed, and is not varied, it is imperative that you ensure that any future development does not conflict with that condition and, if so, that planning permission is sought and obtained prior to beginning any works.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. 

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.

Karen Jones

Karen Jones

Partner, Planning & Environmental Law

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