Lauren Day

Partner, Solicitor & Head of Dispute Resolution

DATE PUBLISHED: 03 Sep 2018 LAST UPDATED: 01 Jul 2021

Planning applications: the importance of getting it right

A recent article in the news has shown how important it is for developers to make sure that their planning applications accord with the plans that are submitted to the relevant local authority at the time, prior to building work commencing. Failure to do so can result in significant delay, expense and inconvenience for developers and can also lead to claims being issued in the courts.

In the above mentioned article, the developers that built new homes under a project costing an estimated £2.5 million next to neighbours Clare and James Frewin’s property are now facing difficulties after a retrospective planning application has been rejected by the local authority, Babergh District Council. It is quite possible that the new homes could now be demolished under the local authority’s orders, but this is yet to be determined.

The houses that were built were significantly (2.6 metres) over the height that had been approved for the build at the planning stage. They were also built 3 metres closer than had been originally proposed in the developer’s plans. This was revealed by an independent surveyor instructed by Mr and Mrs Frewin.

A planning enforcement case was opened in October 2017 and on July 23 2018 the council’s planning committee voted unanimously to reject a retrospective planning application for the changes in size and distance to neighbouring properties.

Where a developer makes a change to a property that requires planning permission and they have not already had approval, a local authority can approve a retrospective planning permission application, but it Is not always guaranteed that such will be granted and therefore, it is never safe to continue developing the properties on this assumption. If the application is refused, the local authority has the power to issue an enforcement notice, which will require the developer to rectify and change the property back to how it was originally (if no permission was granted at all) or back to the specification the local authority had approved (if the developer has developed beyond the permission granted to them). In this case, it was not so straightforward, as the properties are at such a late stage in the development process, but this doesn’t mean that the development can simply remain as a result.

The developers plan on applying for a certificate of lawful development (which is not compulsory), to confirm that the buildings are lawful for planning control purposes, however if this is not granted, an appeal is likely to follow. The developers will be required to apply to the local authority via the Planning Portal for this to be granted, who will then make a decision as to whether the developers have breached the planning conditions agreed.

Local authorities have the power under Section 70C of the Town and Country Planning Act 1990 to decline to determine retrospective planning applications subject to a planning enforcement notice and the case of Wingrove v Stratford-On-Avon District Council [2015] shows such an application with similar circumstances to the Frewins’ dispute being refused in practice.

Should you require assistance or advice with your planning disputes, our Dispute Resolution team at Ellis Jones Solicitors may be able to assist you. To obtain more information, please contact Lauren Day on 01202 057760.

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