Application After EN Appeal Dismissed - Public forum - Planning Advisory Service (PAS)
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Application After EN Appeal Dismissed
andy plan, modified 12 Years ago.
Application After EN Appeal Dismissed
Enthusiast Posts: 25 Join Date: 22/03/13 Recent Posts
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An EN issued 2009 requires unauthorised use of an outbuilding as a separate dwelling (within curtilage of another dwelling) to cease. EN appeal dismissed and EN upheld in 2011 (only appealed on grounds the EN steps go too far). Unauthorised use has clearly ceased (bathroom and kitchen have been physically gutted) but LPA refuse to confirm - despite inspecting the building in 2011 and 2012. EN also requires removal of various features - including a brick wall considered to have been "part & parcel" of the unauthorised change of use. LPA agrees that if owner was to build the wall today it would be PD in its own right. Following the EN appeal decision - but well before compliance period expires - the owner submits a planning application to extend and physically link outbuilding to the house as an annexe (happy to accept condition to tie annexe to house or even S106 if LPA insist). Scheme includes retention of brick wall. LPA agree there are no planning objections to proposals and it is in accordance with planning policies but refuse application because the EN requires removal of the wall. Owner has now appealed (S.78) against refusal of planning application. In meantime LPA are now threatening prosecution to secure removal of wall. LPA say their hands are tied due to EN appeal decision - the wall must come down. Surely LPA can withdraw from enf. action at any point they like and enf. action is entirely discretionary - only to be exercised in a proportional fashion when there is public interest to be served? Is LPA's action unreasonable or am I missing something obvious here?
The LPAs hands are not tied because all enforcement is discretionary. They should await the outcome of the s78 appeal. If the only ground for refusing is that there is a live EN on part of the property then consider applying for costs as well. The granting of pp would negate the Notice as the site would enter a new chapter in its history, the Notice would not apply to the new building. Before prosecuting the LPA will consult its solicitors who should apply criteria for prosecution based on CPS guidelines. Courts do not like dealing with planning matters until the planning process is completed. Threatening prosecution and actually prosecuting are two entirely different processes. If this attitude is prevalent in the LPA then consider an early visit to Chambers to get your big guns out.
I hope you show up your planners for what they are andy t. In Snowdonia the decision to prosecute for breach of planning conditions depends upon who you are. The problem is who are national parks answerable to?
andy plan, modified 12 Years ago.
Re: Application After EN Appeal Dismissed
Enthusiast Posts: 25 Join Date: 22/03/13 Recent Posts
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Leslie & Evan - Thanks for the comments. Have already requested we await outcome of S.78 appeal - no response from LPA as yet. Also tried to narrow down the issues by preparing Statement of Common Ground but LPA not keen to do this. You're right of course about the difference between threatening to prosecute and actually doing it (as well as getting legals on board). This sort of brinkmanship does the reputation of the planning system (and planners) no good at all.
Andy ... what can I say that Les beat me to! You are not missing anything obvious and the LPA's action IS unreasonable!
Far be it from me to criticize others however, I am going to do. It seems very heavy handed of the LA to insist on this course of action and their hands are not tied any Enf Officer should know the decision to take formal action is discretionary. Was the appeal written reps and did you specifically argue the part of the Notice relating to the wall. I was just interested what the Inspector said about it as if it would have been pd you would think he would have picked up on that and deleted it from the Notice. If I were you I would take the matter higher , in writing . Good Luck
andy plan, modified 12 Years ago.
Re: Application After EN Appeal Dismissed
Enthusiast Posts: 25 Join Date: 22/03/13 Recent Posts
0
Michael & Charlotte - thanks for your comments as well. I know we are all busy boys and girls so if anyone else sees this then please consider this thread CLOSED from my point of view and thanks for all your input. Charlotte - FYI the EN appeal was WR method - we didn't argue the wall point in too much detail at the time because the LPA and ourselves both agreed that "lesser steps" would be sufficient and subject to some alterations, the wall could remain in an amended form. I would have made a strong point of that at a Hearing or Inquiry but WR was imposed on us. The Inspector didn't refer to this in her decision but simply took the view that the removal of the wall was necessary to return the land to it's condition before the unauthorised development took place (and duly confirmed that particular step in the EN). I'm sure the LPA has it's own side to the story so I won't rush to criticise.