“A recent case for a client of ours serves as a useful reminder that, in certain circumstances, development that has been carried out that was not in accordance with the approved plans, can become lawful”, says Brian Dinnis of Acorn Rural Property Consultants.
The case involves an agricultural dwelling on a farm where permission had been granted subject to the usual agricultural occupancy conditions. The house had been built some years ago and the owner wanted to add an extension. The original planning consent had removed permitted development rights, which meant that planning permission for an extension was required. However, the local planning policy applies floor size limits to agricultural dwellings and any extension wold have exceeded those floor size limits.
“The owner has a separate non-agricultural business that he operates from the farm, and we started the process of looking to see whether that was of sufficient scale for him to have been occupying the house in breach of the agricultural occupancy condition for the ten year period necessary to make an application to have the condition removed. It was when we were researching the planning history that it became apparent that the house had not been built in accordance with the approved plans”, explains Dinnis.
In such cases, the test is whether there are material differences between the development that was approved and what was built. That is always a subjective judgment based on a fact and degree assessment that is dependent on the individual circumstances of the case. One of the considerations is whether the differences between what was approved and what was built could have been dealt with at the time by making an application for a non-material amendment to a planning consent. “In this case, the footprint of the house that was built is different from the footprint of the approved plans and case law and planning appeal decisions indicate that where that is the case, there is a good argument that that is a material difference which means that the development was not lawful”, advises Dinnis.
“Under the Town and Country Planning Act 1990, if the house was originally unauthorised development, it becomes immune from enforcement and therefore lawful after a period of four years. A further consequence is that the lawful use is for an unrestricted dwelling, regardless of whether the owner has or has not complied with the agricultural occupancy restriction”, concludes Dinnis.
For further information on any rural planning matters please contact Brian Dinnis on 01884 214052 or at briandinnis@acornrpc.co.uk .
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