LAWFUL DEVELOPMENT CERTIFICATE REFERENCE NO: A160610
RECOMMENDATION: GRANT CERTIFICATE
RECOMMENDATION DATE: 8TH SEPTEMBER, 2016
CASE OFFICER: CATRIN NEWBOLD
THE SITE AND APPLICATION:
Glan yr Afon is a three bedroomed, detached bungalow fronting onto the A482 in the hamlet of Creuddyn Bridge between Lampeter and Aberaeron. The occupancy of the property is restricted to a person solely or mainly employed in the adjoining scrapyard and the dependants of such person.
The occupancy condition (condition no.5) reads as follows:
“The dwelling hereby granted outline planning permission shall be occupied by a person solely or mainly employed in the adjoining scrapyard and the dependants of such person”.
The planning history of the site is as follows:
-D1.124.88 – Outline planning permission for the erection of a bungalow – Pt. OS 0573, Blaendyffryn, Creuddyn Bridge. Approved subject to conditions 18th April, 1988.
The outline planning permission had a total of 13 conditions attached to the consent, including the following which are the subject of this application:
Condition no. 6 – Before development is commenced a landscaping scheme shall be submitted to and approved by the local planning authority and shall be implemented within one year of the commencement of the development or such extension of time as may be agreed in writing by the local planning authority as if its terms were incorporated in this condition.
Condition no. 8 – The vehicular access shall be laid out and constructed in accordance with typical layout no. 1 annexed hereto.
Condition no. 13 – The proposed access shall be located off the back of a 6m long by 3m deep layby with 6m long entry and exit tapers and a 1.8m wide verge / footway which shall be laid out and constructed to the satisfaction of the local planning authority for the accommodation of calling service vehicles clear of the adjoining road.
An application for approval of reserved matters was dealt with under planning reference D1.730.88. The reserved matters approval was granted on the 5th July, 1988. The only conditions attached to that consent were design related.
An application has now been submitted to the Local Planning Authority for a Certificate of Lawfulness for an Existing Use or Development (CLEUD). The application claims that the development has been in breach of the above mentioned landscaping and access conditions (which were attached to the outline planning permission) for a period in excess of 10 years. The application claims that the dwelling house approved under outline permission D1.124.88 has been developed and occupied in breach of these conditions for a period in excess of 10 years.
The application contends that these access and landscaping conditions go to the heart of the permission thus rendering the original consent invalid. The application claims that the dwelling has been complete and occupied without a valid planning permission in place for a period in excess of 10 years and that the logical conclusion is that the current dwelling on site should be granted a lawful development certificate under section 191 of the act (as amended) and therefore be free of any encumbrance in terms of occupancy.
The application goes on to state that whilst the plans submitted under the reserved matters depict “typical layout no.1” and include a lay-by as specified under cited conditions, it is evident that neither these nor the landscaping requirements have been carried out. Not only does the evidence on the ground support this, a letter on file (dated 29th November, 1990) specifically refers to non-submission of the details and the visual prominence of the site as a result.
The application accepts that the landscaping requirement is not central to the permission, however it argues that the access requirements, which regulate access & egress onto a busy “A” road go to the heart of the permission and were imposed “in the interests of road safety and free flow of traffic”.
The application claims that the building works were substantially completed or the use / activity began on the 29/11/1990, well in excess of 10 years from the date of this current application.
On the submitted application form, the applicant is seeking a lawful development certificate on the basis that an existing use, operation or activity in breach of planning conditions has occurred for a period in excess of 10 years before the date of this application. More specifically, the description under question 8 of the application form describes the use, operation or activity as comprising of development in breach of landscaping and access conditions attached to outline consent D1/124/88). The form further states that there has been no interruption to the breach.
This is reiterated under question 9 of the application form, whereby the grounds for the certificate are noted as the use, building works or activity in breach of condition began more than 10 years before the date of this application. Question 9 specifically refers to planning permission reference no. D1/124/88 and specifically to conditions 6 (landscaping scheme), 8 and 13 (access), dated the 18/4/1988. It further states that a lawful development certificate should be granted because the dwelling approved under D1.124.88 has been developed and occupied in breach of conditions (relating to access and landscaping) in excess of 10 years.
Nowhere on the application form itself does it state that a lawful development certificate is being sought for the breach of the occupancy condition. This claim is only made within the supporting statement to the application.
EVALUATION:
Section 191 Town and County Planning Act 1990 states as follows:
“(1) If any person wishes to ascertain whether –
(a) Any existing use of buildings or other land is lawful;
(b) Any operations which have been carried out in, on, over or under land are lawful; or
(c) Any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,
He / she may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.
For the purposes of this Act, uses and operations are lawful at any time if –
(a) No enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and
(b) They do not constitute a contravention of any of the requirements of any enforcement notice then in force.
(3) …
(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.
(5) A certificate under this section shall –
(a) Specify the land to which it relates;
(b) Describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class);
(c) Give the reasons for determining the use, operations or other matters to be lawful; and
(d) Specify the date of the application for the certificate.
(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.”
The onus of proving the lawfulness of an existing use or development rests with the applicant and the Courts have held in Gabbitas V Secretary of State for the Environment (1985) that the relevant test of the evidence on such matters is “the balance of probability”. Moreover, the courts have held that the applicant’s own evidence does not need to be corroborated by “independent” evidence in order to be accepted. If the Local Planning Authority has no evidence of their own, or from others, to contradict or otherwise make the applicant’s version of events less than probable, there is no good reason to refuse the application, provided the applicant’s evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate “on the balance of probability”. If the applicant can satisfy the local planning authority of the lawfulness of development carried out, he will be entitled to be issued with the certificate.
In this case, I am of the opinion that the applicant is entitled to a lawful development certificate for the following reasons:
-The Local Authority’s Highways Department has confirmed that highways conditions 8 and 13 have not been complied with. (See consultation response dated 31st August, 2016).
-There is no evidence on the file to suggest that the landscaping condition was complied with. Indeed, the last correspondence on the file was from Mr. Gwyn Jones (former LA Planning Enforcement Officer) dated 29thNovember, 1990, stating that the landscaping condition had not been complied with. There is no further correspondence on the file after that date.
-No enforcement action has ever been taken against the breach of the conditions and this has been verified through the relevant history files and the enforcement register. The proposal does not therefore contravene any of the requirements of an enforcement notice which is in force.
-Based on the information contained within the original case file and based on aerial photography which the LPA holds, the LPA is satisfied that the breaches have occurred for a period in excess of 10 years.
-It is therefore no longer possible to undertake any further enforcement action in respect of those conditions, as the time limit for enforcement action has expired.
-I am therefore of the opinion that under the provisions of section 191 of the act, the applicant is entitled to a lawful development certificate.
In the supporting information to the application, the application makes an argument that the breach of the conditions go to the heart of the permission, thus rendering the original consent invalid. The application claims that the dwelling has been complete and occupied without a valid planning permission in place for a period in excess of 10 years and that the logical conclusion is that the current dwelling on site should be granted a lawful development certificate under section 191 of the act (as amended) and therefore be free of any encumbrance in terms of occupancy. (i.e. condition no.5).
This is often referred to as the Whitley principle after the case of Whitley & Sons v Secretary of State for Wales (1992).
There have been numerous other cases where this matter has been discussed but another key case is R (on the application of Hart Aggregates Ltd) v Hartlepool BC (2005). This case assessed whether a condition “goes to the heart of a permission” and held that where a pre-commencement condition is breached the following issues arise:
(i)Is it a condition precedent as a matter of drafting i.e. is the prohibition on commencing development express and not just implied;
(ii)If it is condition precedent as a matter of drafting is it sufficiently significant either alone or in conjunction with other pre-commencement conditions which have been breached to count as a condition precedent to which the Whitely principle applies;
(iii)Do any of the established exceptions such as the Whitely exception apply;
(iv)Have actual developments on the ground rendered the condition precedent less significant so that it would be irrational to regard the operations as being outside the permission as opposed to being simply a breach of condition;
(v)Would enforcement action be irrational on public law grounds i.e. does the Hammerton exception apply.
However, the application form itself has not specifically requested that consideration be given to this aspect and therefore reference to the occupancy condition does not appear on the lawful development certificate. No confirmation is therefore given under this certificate that the dwellinghouse is lawful and free of the encumbrance.
Whether or not the applicant subsequently claims this at a later date, after the release of this certificate, is something which will have to be considered by the LPA at that point.
However, I cannot see any cogent reason why the certificate should be withheld in relation to conditions 6, 8 and 13.
Reason for approval:
- On the basis of the evidence submitted, the Local Planning Authority is satisfied on the balance of probabilities that conditions no. 6, 8 and 13 of planning permission D1/124/88 have been breached for a period in excess of 10 years before the date of this application.
Catrin Newbold
8-9-2016