December's conundrum

The conundrum set out this month in our e-bulletin, Future Perfect?, reads as follows....what do you think?

We have been considering whether works required pursuant to a condition on a planning permission (but not forming part of the application), require a further planning consent to be granted. We have seen a number of cases which suggests that they don't and that the condition is effectively an implied grant of planning consent for those works (see Irlam Brick Co for example). However, there does not seem to be any statutory basis for this stance. Have you ever come across it in practice or been required to obtain a separate consent for such works?

Comments

[Bish Bosh]

Hmm, that old chestnut.

A typical example might include a scenario when an LPA grants a change of use to a building to a cafe or restaurant and then rather absent-mindedly applies a condition requiring an extraction system, details to be subitted and agreed. Of course, the details submitted inevitably will be a monstrous steel boxed flue that offends everyone and on its own would require consent. Bonus points if it involves Listed Building! Details always needed prior to granting I would suggest!

I would always be very cautious about using such conditions as it would effectively take much development outside of the normal application process leaving third parties no statutory opportunities to comment. A recipe for plenty of complaints! Sometimes though you have to take a leap of faith with all the pressures to get things done on time.

[Bish Bosh]

Come to think of it I have a question related to yours that I hope you could shed some light on!

I've been asked (by solicitors no less) if all conditions on a planning permission have been complied with. It was for change of use of an agricultural barn to B1 use with no works. A condition stated that if any works were necessary details of the materials needed to be agreed with the LPA. The following year another application was made for works to the barn (putting in full length windows in one flank, slate roof in lieu of tin) and was approved.

There are several questions here. Is the approval of the 2nd application capable of discharging the condition on the first? If the works approved under the 2nd application are commenced and nothing else has this commenced the first application?

I'm taking the position of yes to the 1st question but no the 2nd. I believe that the 1st consent has expired despite the physical works done under the 2nd consent. Althoug that's hard to reconcile with the view that the 2nd application is capable of discharging the condition on the 1st.

Ow, my brain!

[beverley firth]

Interesting questions - the second one is more straighforward i think and the answer must be no. i also suspect that "no" may also correct for the first although it may depend what was actually included in the second application. if however the second apolication included all that a submission for approval under the first permission would have required, then it is possible to argue that the second permission does give that approval. When did the first permission expire?