“When making an application for planning consent or for a Certificate of Lawfulness for Existing Use or Development (CLEUD), it is incumbent on the applicant to provide clear and accurate supporting information to the Local Planning Authority (LPA”, says Brian Dinnis of Acorn Rural Property Consultants.
“So far as planning applications are concerned, plans must provide an accurate depiction of the proposed development because they are part and parcel of the material considerations that an LPA considers when determining a planning application. If consent is granted, the certificate will invariably also include a condition that the development must be carried out strictly in accordance with the approved plans”, continues Dinnis.
“A good example of why it is important to get things right is a case in the London Borough of Barnet where a developer was granted planning consent to demolish two 2-storey houses and replace them with a 3-story block of flats and apartments. The decision notice included a condition which provided that ‘the development hereby permitted shall be carried out in accordance with the approved plans’. Among the approved plans were four depicting the street scene and showing the relative position of the new development with the rest of the houses in the street. They purported to show that the height of the proposed flats was broadly in line with the roof heights of the original houses that were being demolished and, accordingly, also in line with the height of the remaining houses on either side of the proposed new building.
However, it was discovered by the architects who had been instructed to prepare the detailed construction drawings that, despite showing a scale bar on the legend, the plans were not, in fact, drawn to scale and, if they had been accurate, would have shown that the new building was significantly higher than the original houses and the houses on either side of it. In an attempt to clarify the position, the LPA was informed of the error and the developer sought to establish through discussion how best to proceed. No agreement was reached so the developer applied for a CLUED to confirm that the development could still lawfully go ahead. It was argued that the approved plans depicting the new development itself were accurate and that the inaccurate plans showing the street scene were illustrative only so that it would be lawful to carry out the development in accordance with the accurate plans that had been approved.
The LPA refused the application on the grounds that the development was in an area where the street scene was an important factor and that the height of the proposed building relative to the neighbouring properties was a material consideration in granting the consent and that, if the drawings had been correct, it is likely that consent would not have been granted. The developer appealed the refusal. The planning inspector agreed with the LPA and dismissed the appeal. The developer made an application for a judicial review of the appeal decision to the High Court. The Court upheld the LPA and the planning inspector and concluded that the inaccurate plans were part and parcel of the application (and not just for illustrative purposes) and were sufficiently incorrect for there to be a fundamental inconsistency between them and the condition requiring the development to be carried out in accordance with the approved plans. The Court therefore confirmed that the development could not lawfully go ahead”, recounts Dinnis.
The judgment is relatively short and, for those who wish to read it, can be found here.
“The position in respect of inaccurate and/or incorrect statements in CLUED applications is altogether more straightforward. The applicant is responsible for providing sufficient information to support an application, and it is an offence to make a false or misleading statement, use false or misleading documentation, or withhold any material information in order to obtain a certificate. Committing an offence can result in a fine on summary conviction. On indictment, the maximum penalty is 2 years’ imprisonment or a fine, or both.
Under Section 193 of the Town and County Planning Act 1990, a LPA may revoke a CLUED if, on the application for the certificate, (a) a statement was made, or document used which was false in a material particular; or (b) any material information was withheld. The decision to revoke a CLUED is made solely by the LPA and there is no right of appeal. The only basis to challenge a revocation is in the High Court in judicial review proceedings. No compensation is payable in the event of revocation and the owner or occupier may be liable to immediate enforcement action in addition to the criminal sanctions mentioned above”, advises Dinnis.
For further information please contact Acorn Rural Property Consultants on 01884 212380
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