It is widely known there are many “ifs and buts” in planning, with so much relying on the facts of each case. It can often be tempting to follow blanket guidelines and advice. However, the judgements outlined below are an important reminder of just how dangerous it can be to assume that what applied in one case will apply in another.
London and Ilford Ltd v Sovereign Property Holdings Ltd
This case concerned the payment of overage – a payment made to the seller for the uplift in value of the property after sale – following prior approval.
The development involved the conversion of office space to residential units. Prior approval was obtained but building regulations prevented the residential units from being constructed. Despite not being able to develop the property in the intended way, the Court of Appeal found that the overage payment had been triggered and was payable.
Building regulations are entirely separate to planning and their potential impact on commencement of development must not be overlooked. Receipt of prior approval does not always mean the development will go ahead, so developers may wish to consider a trigger for an overage payment at a later stage of the development, for instance, on commencement or on the disposal of units.
Marshall, R v East Dorset District Council & Anor
In this case, the High Court found that the grant of prior approval by a Local Planning Authority (LPA) did not automatically mean the development was permitted under Permitted Development (PD) rights.
Before this decision, the position was that when a LPA gives prior approval, it is inherent they also accept the development qualifies for PD rights. However, it is now considered that prior approval is simply confirming the conditions in the General Permitted Development Order (GPDO) have been met. Developers should therefore consider the GPDO in its entirety to ascertain whether the development can actually be considered as PD.
However, as this case only dealt with Part 6 of the GPDO (Agriculture), it is unclear whether the same interpretation would be made on other parts that are subject to different wording – and any assumption that it would, could be detrimental.
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