Administrative Process Of Development Control Business Essay

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The administrative process of Development Control may vary in different countries but in essence the objective remains the same; which is to ensure the supply of sustainable development in line with social, economical and environmental factors for the benefit of the community. The need for which became increasingly apparent in the post war period to rebuild parts of the land and to cope with the industrialization and urbanization movement which was required for the economic growth and benefit of the country.

Development Control in the UK for instance was established by the Town and Country Planning Act of 1947 (following the Second World War) which laid down the framework for the system, and later underwent a few alterations to be further consolidated into the Town and Country Planning Act of 1990. According to which, any proposals for development (as defined within Section 55 of the same Act) requires the developer to secure planning permission from the local authority prior to commencing any works. According to the Regional Strategies and Local Development Frameworks put in place, the Local Planning Authority defines a set of documents which describe its strategy, site allocation/use and policies for the development and use of land, in line with its Local Development Scheme. These documents and policies serve as a guideline for proposed development and ensure consistency and adherence to building regulations, restrictions and quality standards.

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The threat to non-implementation of development control systems could result in a multitude of negligent developments which may have adverse effects on various aspects; such as:

Community

Living Conditions:

From past example, the rapid development of industrial towns and cities in the United Kingdom during the Industrial Revolution resulted in the indiscriminate location of developments, residential and industrial properties were being built alongside each other in a way which resulted in there being an unhealthy environment for residential occupiers. Development also tended to occur irrespective of whether there was adequate infrastructure (- Source: extracted from Property Development by A.F Millington, Pg.66.)

Social Conditions:

In more recent years, according to figures quoted by Shelter in 2006 there are 1.6 million youngsters in Britain living in housing judged to be temporary, overcrowded or unfit. To which the housing minister responded: "For the first time, the planning system will have to identify and meet the housing needs of children"(Online Ref 1); recognizing the social and cultural impact this could have on the countries youth and population.

Sufficient (Affordable) Housing:

To offer a local example, according to an article and market advice from consultants according to consultants A.T. Kearney (Online Ref 2); "In Egypt there is a shortage of 280,000 units annually and in Saudi Arabia there is an annual shortage of 150,000 units", stating that Governments and municipalities will have to get involved to ensure balanced urban development by monitoring short term private interests and supporting the development of the middle income market.

A recent example is the announcement by the Urban Planning Council in Abu Dhabi that all developments larger than 75,000 square meters must set aside rental options for the middle income group.

Economic:

Albeit market forces represent the prevailing trend of demand and supply, it would be misguided to let the market run its course without any structure or guidelines. Without regulation developers would continue to develop property on the basis of their assumption of market demand (which may well be a function of hype and speculation). This could, in the long run create an over(artificial) supply in the market if there is no genuine demand to absorb it. Subsequently the high vacancy rates would cause the property rent and sales prices in the market to fall, which would have a knock on effect on those in the industry as well as those related to it, eventually causing unemployment, change in lending rates, under-valuing of properties etc.

Environment Factors:

The UK and several other developed countries adopt an Eco Friendly approach to development such as the (UKs) Code for Sustainable Homes and EPC; regulations which help reduce carbon emissions and protect the environment. (Online Ref 3)

Preservation of Wildlife & Heritage:

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As part of the UK's application process for permitted development, some areas are exempt from certain developments. Such as National Parks, plants and/or wildlife, Green Belts, Historical sites etc

Without development controls, some of the countries precious resources may be jeopardized intentionally or unintentionally by a developer's works which may also result in an economic loss.

Heriot Hardbacks, a bookstore, located on a popular retail high street in London has in

recent years noticed a fall in revenue largely due to the increasing popularity of online

trading sites which have proved a competitive source of books for their customers.

Anton, the owner of the bookstore, has decided to convert a significant part of his

premise into a coffee shop to try and encourage customers to visit his store. At the same

time, Anton's friend, Sarim, believes the premise would be best used as a taxi business

given the lack of public transport available in the town.

Use your knowledge of planning law to advise: (a) Anton on his proposal to build a

coffee shop within his bookstore and (b) Sarim's proposal to offer a taxi business from

the premise.

In order to assess where planning permission is required, one needs to understand the prevailing development control policies. For instance, the UK follows a plan- led system, wherein Development Plans are formed and submitted for approval to the local planning authority.

Planning permission is required for the execution of any development to the land however, it is essential to determine whether the intended proposal requires permission or not.

'Development' by definition is said to mean (-Source: from university tutorial notes):

a) demolition of buildings;

b) rebuilding;

c) structural alterations of or additions to buildings; and

d) other operations normally undertaken by a person carrying on business as a builder

Furthermore the 2 main principles of development are (-Source: from university tutorial notes):

a) Operations- which deals with something that changes the physical character of the building

b) Change of Use- '"use", in relation to land, does not include the use of land for the carrying out of any building or other operations on it.'

The requirement to obtain planning permission extends not only to new construction, but also in substantive changes of use of a property. There are various 'use classes', and change of use to a different use class generally requires Planning permission. Let us examine this in the context of the 2 scenarios described in the case:

Coffee Shop

With regard to Anton's proposal to convert a significant part of his bookstore into a coffee shop, I would advise him to first evaluate the scope of works involved and development control guidelines in order to conduct the same. According to the Use Class and Permitted Use Guide defined by the Planning authorities in the UK, Anton's bookstore falls under Class A1, pertaining to shops (- Source: ref Appendix 1.)

However note that a change within the same Use Class would not require separate permission, but would be restricted to the purpose types and conditions delineated within the same class. "Planning permission is not required when both the present and proposed uses fall within the same 'class', or if the Town and Country Planning (Use Classes) Order says that a change of class is permitted to another specified class". For instance Anton could convert part of his bookstore into a Sandwich Bar without requiring separate permission, which would mean he could only serve sandwiches and cold food which are to be consumed off the premises. Hot food takeaways fall within use class A5, but ancillary sales of hot food will also still be permitted within class A1. However Anton would not be able to build a full fledged coffee shop within the premises without applying for development permission as it would be considered a material change of Use (Class) from type A1 to A3 (Restaurants and Cafes i.e. constitutes consumption on premises). A key factor in determining use is the split between between takeaway sales and sales for consumption on the premises. If the primary use will be for the sale of food or drinks to be consumed within the outlet, then the proposed use will fall within class A3. At times the dominant use may fluctuate which may result in a mixed class A1 and A3 use, which would still require planning permission.

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Additionally "permission will also be required for commercial extractor flues if cooking is intended to be carried out on the premises." I.e. Anton would also need to bring the food & beverages preparation practice to the attention of the authorities when applying for permissions as a precautionary measure in order to assure them that there is no overbearing fumes, odours, etc that would dramatically change the current environment of the existing and/or neighbouring areas.

Also should Anton wish to place "any tables and chairs on the highway*/sidewalk accompanying his shop, it would be likely that he would require a licence from the highway authority to allow them to assess factors such as pedestrian movements, sight lines and road safety".

*Highway refers to footways and verges associated with publicly maintained roads."

Any changes in signage are also likely to require expressed advertisement consent.

(-Source: Excerpts extracted from Online Ref 4)

Taxi Business

Unlike with the Coffee shop, the taxi business falls within the 'Sui Generis' Category which means they are considered to be a use class in themselves, and not part of an existing use class. Therefore in order to covert the premise in a way that it can provide taxi services, Anton would require to apply for permission to proceed with his business plan. It would be beneficial to his application to provide rationale/research demonstrating the lack of public transport available in the town.

Conclusion

In any event, Anton needs to conduct his due diligence on the business opportunity he wishes to pursue in terms of the Return on Investment and assess the merits and demerits of each proposal. We have observed that in both cases development permission would need to be sought unless Anton would only convert a part of his premise into a Snack Bar as opposed to a café or change his entire operation to a taxi service business.

Accordingly he would need to consider that should he require planning permission, this could be a time consuming process and factor in the relevant fee charges.

A permission application should be made accurately and contain all relevant information and supporting documentation to demonstrate that the project is sustainable towards the community, environment, economy and blend in with the aesthetics of the local area. Of course the final decision on whether the project can go ahead or not rest with the Local Planning Authority.

Furthermore, if the proposed conversion (to either a café or taxi service) requires any works as defined in Regulation 3 of the Building Regulations (2010) guide, it is the responsibility of the entity carrying out the building works to adhere to the standards specified. It is also important to assess whether additional Health and Safety approvals must be sought depending on the scale and anticipated impact of works.

As with all building work, the onus of complying with the relevant planning rules and building regulations lies with the property owner.

That said, the dynamics of the approval process may vary should Anton's relationship to the property be on a leasehold basis, as in this situation he would most likely need to acquire prior consent from the building landlord.

Boris, a retired tennis player, has recently moved to a large country estate in the UK

located in a major national park. Whilst he likes the natural beauty of his new home and its surroundings he cannot help but miss the game of tennis. That said, Boris decided to get underway with constructing a tennis court on his premise. Some weeks later, Boris received a notice from the local authority asking him to cease the construction of his tennis court. Boris is somewhat confused as he believed that he could build the tennis court without planning permission.

Advise Boris on the following: (a) whether he needs planning permission (b) enforcement action of the local authority and (c) any relevant appeals.

Within national parks, it is the National Park Authority who is responsible for granting planning permissions for changes in building and land use or new buildings, with a purpose:

to conserve and enhance the natural beauty, wildlife and cultural heritage of the area, and

to promote opportunities for the understanding and enjoyment of the park's special qualities by the public.

The UK Government supports the need for stringent planning and implementation processes, which is even stricter than with Local Planning Authorities who regard:

"National Park designation as conferring the highest status of protection as far as landscape and scenic beauty are concerned." The Countryside - Environmental Quality and Economic and Social Development (1997)

Therefore inhabitants and third parties who wish to conduct any sort of development should be aware of the policies and definition of permitted and non permitted development requiring permission applications to be made, as set out by the National Park Authority for their respective area. E.g. Dartmoor National Park Authority, Lake District National Park etc.

With some National Park Authorities a certain level of alterations and extension works are permitted. For example, according to the Dartmoor NPA cartilage building / (garden) structures such as decking, a shed, greenhouse or an oil tank fall under permitted developments, except in the following conditions:

Containers with capacity greater than 3,500 litres

Any structures forward of the 'principal elevation' of the house

Any structures to the side of the house

Any structures higher than 4 metres

Any verandas and balconies

Any raised platforms (including decking) more than 300mm high

Curtilage structures greater than 10 square metres in area and more than 20 metres from the house

As relates the building of a tennis court, one would expect that there is a fair amount of ground excavation, surface levelling and the installation of fencing and perhaps even the installation of flood lights. To demonstrate my point regarding permitted developments and exceptions, below an excerpt from the Dartmoor NPA (-Source: Excerpts extracted from Online Ref 5) with regard to permission requirements for the installation and change of hard surfacing:

"From 1 October 2008 the permitted development rights that allow householders to pave their front garden with hard standing without planning permission have changed in order to reduce the impact of this type of development on flooding and on pollution of watercourses.  You will not need planning permission if a new or replacement driveway of any size uses permeable (or porous) surfacing, such as gravel, permeable concrete block paving or porous asphalt, or if the rainwater is directed to a lawn or border to drain naturally.  If the surface to be covered is more than five square metres planning permission will be needed for laying traditional, impermeable driveways that do not provide for the water to run to a permeable area." Similarly with the fencing; "Repair or replacement of an existing wall or fence would not normally require permission.  Next to a road or public footpath, you can build a new wall or fence without planning permission as long as it is not more than one metre high. You can build a new wall or fence up to two metres high anywhere else without needing planning permission." Floodlights on the other hand is often referred to as a planning problem (-Source: Excerpts extracted from Online Ref 7), given the effect on its surrounding which can be somewhat manipulated according to its intensity, frequency of use and brightness. In fact it is worth referring to Kensington and Chelsea Royal London Borough Council v C G Hotels (1981) on the 'material affects' of the lighting on the building exterior and by definition that it was held that it could not be considered development.

Therefore, albeit the proposed location of the tennis court falls within the parameter of Mr. Boris's estate, the premise is still located within a National Park (restricted development) and hence will be subject to the prevailing development regulations and approval process for those works exceeding permitted development.

Ideally Mr. Boris should have applied for permission to the relevant authorities prior to proceeding with construction works or alternatively consulted with them in case of any grey areas as regards to the intended development, bearing in mind that , some areas are exempt from certain developments.

Reasons for special protection include (-Source: Excerpts extracted from Online Ref 4)

Protect attractive landscape - e.g. national parks

Protect interesting plants and/or wildlife

Control the spread of towns and villages into open countryside - e.g. Green Belts

Protect monuments or buildings of historical or architectural interest

(b) Enforcement action of the local authority

Given that Mr. Boris was issued with a notice to cease works, officially known as a 'Stop Notice', one can assume that he was in breach of planning control (conducting unauthorized development).

Mr. Boris is therefore obliged to cease works immediately as failure to comply could result in summary conviction and fines of up to £20,000, or an unlimited fine if convicted on indictment.

(c) any relevant appeals.

"Generally a Stop Notice must refer to the enforcement notice (the terms of the injunction) and must have a copy of the enforcement notice attached to it" (-Source: Excerpts extracted from Online Ref 6) and is usually issued when a party continues to have an interest in the land or be engaged in any activity forbidden by the enforcement notice.

There is no right of appeal to the Secretary of State against the prohibition in a stop notice. However this may be challenged by appealing to the High Court to apply for judicial review, in accordance with the Rules of the Supreme Court.

In Mr. Boris case however it is not clear whether he had been previously served with an enforcement notice nor is the grounds for the stop notice evident. Because the power to serve a stop notice only derives from the issue of a planning enforcement notice, we can assume that Mr. Boris's estate may have been classed under listed buildings, conservation control, or under protection for trees or from hazardous substances effecting the environment and therefore his development works may have been substantial enough to justify the LPA's decision to serve the stop notice .i.e. unauthorized development and/or the use or operation of materials that may be considered harmful to the health and environment of his surroundings.

In no more than 250 words outline the validity of planning conditions in England &

Wales. Reference to relevant case law should also be discussed.

(10 marks)

Rather than being viewed as a hindrance, planning conditions can actually serve to be a facilitator in the attainment of planning permission. Wherein planning permission may be granted subject to certain valid conditions being fulfilled which are essential and relevant to the development, instead of declining the application.

The validity of which is sometimes debateable due to the ambiguity of the conditions and its necessity. It is the responsibility of the Local Planning Authority who is setting out the conditions to clearly delineate achievable expectancies and timelines. As in the case with Henry Boot Homes Limited v Bassetlaw District Council [2002] All ER 421 (Online Ref 8), where the Town and Country Planning Act 1990 ("the Act") makes provision for the expiry of planning permissions not implemented within a certain time. This is enforced by the planning permission being subject to conditions that the development must be begun by the stated time period. Failure to commence by the end of that period means it is no longer authorised by the given permission.

Also to ensure clarity the conditions must be measurable in order to evaluate whether the necessary action was taken to constitute the works being permissible.

In essence and as a matter of policy, conditions should only be imposed where they satisfy all of the following six tests (Online Ref 9):

i. necessary;

ii. relevant to planning;

iii. relevant to the development to be permitted;

iv. enforceable;

v. precise; and

vi. reasonable in all other respects

Online References:

http://news.bbc.co.uk/2/hi/uk_news/6194116.stm

http://www.nuwireinvestor.com/articles/real-estate-in-the-middle-east-insufficient-supply-for-expanding-55889.aspx

http://www.planningportal.gov.uk/buildingregulations/greenerbuildings

http://www.planningportal.gov.uk/planning/planningsystem/planningpermission

http://www.dartmoor-npa.gov.uk/index/planning/pl-devcontrol/planning_advice/pl-planningpermission.htm ;

http://www.nationalparks.gov.uk/livingin/planning.htm

http://www.mylawyer.co.uk/ml/index.cfm?event=base:articleHYPERLINK "http://www.mylawyer.co.uk/ml/index.cfm?event=base:article&node=A76061B0D76474#link29"&HYPERLINK "http://www.mylawyer.co.uk/ml/index.cfm?event=base:article&node=A76061B0D76474#link29"node=A76061B0D76474#link29)

http://www.sportslightinguk.co.uk/index_Floodlight_Planning_Services.htm

http://vlex.co.uk/vid/52575099

www.HYPERLINK "../page1.htm"planning-applications.co.uk