Re: Amendment to scheme already under construction - Public forum - Planning Advisory Service (PAS)

We have experienced this situation. We advised as you have and had counsel's opinion to back it up - i.e. that it would be unlawful to grant pp for an extension to an unbuilt building. However, the developer came back with a silk's opinion which in summary said that despite what common sense may tell us the legislation is silent on this issue and since what is proposed is "building operations" a full planning application can be made for an extension to a building yet to be constructed. We still disagreed with that to be honest but capitulated anyway since we had no objection to the extension and didn't want to spend more money on a QC. Counsel did advise that to prevent any future argument about PD rights the "original building" should be defined as the originally approved one in a condition if necessary. I still think that the developer would be best advised that his approach is uncertain in legal terms whereas your approach carries much greater certainty.

Given that there seems to be some openness to the legal interpretation, can I suggest another consideration - In DM terms - if, as in much of the country, your authority is keen to encourage employment and economic growth, its appropriate to facilitate the development by taking as flexible approach as possible to the procedural matter. Phillipa

Surely an extension to an approved building even when the planning permission has been implemented is not acceptable as a variation of condition application. I would be of the view that they would need to submit a full retrospective application for the building they now wish to construct in its entirety under Section 73a. It was my understanding that the new minor material alteration allowance witch is dealt with as a variation of condition this relates only permissions that have not been implemented. If they wish to amend a condition retrospectively this again still require a full application to be submitted under Section 73a of the act and the authority is entitled to consider the principle again.

I can't see what the problem is, provided that the main building is actually under construction. Only if the the construction of the main building hadn't been commenced might there be an issue ... merely because they could then build the extension but never build the building! Is the issue not being overly complicated?

I entirely agree with Phillipa - the message should be about how can we help you deliver the development not placing barriers in the way of investement. The development industry will soon be aware of the Councils that do not want investement and stay clear of them if thats what you want then carry on looking at the rule book. More development management please

I agree with the sentiments being expressed in terms of "development management" as long as it does not come at the expense of being reasonably confident that what is being permitted is lawful. So I don't see the harm in asking questions about lawfulness, particularly in these circumstances where the alternative route advocated by Jon is likely to be no more complex or expensive for the developer. It benefits no-one if (as has happened in a different case at my authority) a business competitor successfully challenges a decision in the courts on a technicality like this; the developer suffers delays and uncertainty and the public purse is saddled with the legal costs. Helping to steer an applicant through the legal intricacies of the planning system is part of good development management.

unfortunately I get the impression from an increasing number of LPAs that they look upon this as a handy way of getting extra application fee income as they probably realise the delay in contesting their stance will cost a developer more than just coughing up. Very glad to see some of the comments about LPAs needing to be proactive and responsive to the local economy but I suspect you'd been in a small minority amongst your peers!

I think that you are being pessimistic Simon! Most planners are increasingly aware that their job is, more than ever, centred around achieving good outcomes rather than playing rule book games. But local authorities do need to be aware of the risks of judicial review and make sure that they protect the developer as well as themselves by being aware of legalities. The approach that I'd always advocate is that if a development is in line with policy objectives and therefore likely to be acceptable, the planners can do the problem solving around process in conversation with the developer - in that way the risk and delay is likely to be lessened for both. But the overall principle has to be that if the there is an appropriate and less bureaucratic way to consider a development proposal, then take it . Planning processes shouldn't be a great way to wreck someone's day.

it's been a long week! Hopefully a more pragmatic / collaborative / enabling approach will become the default position, but can sometimes seem like those 'in the system' are there to allow the system to go through its processes rather than with an eye on the bigger picture. I suspect that anyone on here is from a self-selecting group who want to make things as best as possible for all concerned; just wish we were in the majority.