variation to a condition in a planning approval notice

[allan484]

Hello,
my name is Allan and this is my first time here so patience please if I get something wrong. (apologies that it is also long winded).
In 2005 I helped a friend of mine attempting to obtain outline planning permission to build a small 3 bed detached house in his garden to the side of his property. It was refused, we went to appeal and won. We then made an application for the reserved matters. This again was refused but again went to appeal and won. The planning inspectorate also decided among other issues in our favour,r that this application did not require a Section 106 agreement for a fee of £5,500 requested by the transportation department. Because of certain restrictions that were found during excavation it was necessary to reapply for planning permission with one or two material changes. This time it passed and because of the previous appeals the Section 106 agreement was disregarded by the LA. Because of the economic climate, the new work never started and we have now submitted an application to extend this period of permission that was granted in February 2009 which would mean a variation to the condition that work should commence within 5 years. The Local Authority have now come back and said that because of new legislation they would now require the payment of £5,500 under a Section 106 Agreement as again requested by the transportation department.
Are they allowed to do this as there are no material changes and this is just a request to extend the previous approved application.
Sorry it is so long but it would mean a lot if any of you guys can help out,
Regards,
Allan

 

[Architexeter]

Hmm, interesting, thanks for the detailed information, its much better saying too much than not enough on this forum as you'll find people can help further and be more specific with their advice.

I am not too familiar with the extension of time application for an extant permission but I guess it perhaps can be refused if policy has changed and the LA feel it is applicable to the application.

Could you not consider that the development had started? You did commence with the development but only stopped due to on site complications that could not be forseen.

What are the conditions that need addressing?

I cannot advise further but I'm sure others on this excellent forum will be more than able to.

 

[allan484]

Thanks for your quick reply and sorry I for the delay. You are right in regarding that the work had previously started but this was under the previous development that was granted and not the new application. Because of this I cannot use this as a reason that the works had started within the 5 year period. Though I do need to find out urgently if they are within their rights to make this request again.
I am very grateful for your response and time taken. Seems like a good forum.

 

[allan484]

Hello again,
can anybody please confirm if reducing the ground levels on site constitutes commencement of the development. I am reasonably sure that the LA have now adopted a new Local Development Plan though I am not sure whether this has any bearing on this request from the LA.
If the answer to my question is that it does constitute beginning of the development then the application made to extend the original application would then become irrelevant. This question is not as stupid as it sounds. (hopefully anyway)
Thanks Architexeter for your last response, very grateful.
Thanks

 

[captainpp]

Did the application include reducing the ground level? I am not an expert, but it seems to me that if the application did including lower the ground and that has been done then the development has been started.

 

[allan484]

yes, there was a very slight gradient on the existing plot and excavation was undertaken to level the plot, in some places to bed rock. Only approximately 25 ton was removed and to access the plot from the highway approximately 3m of hedgerow was removed.
Most of this excavation work was carried out during the first application and the remainder was completed after the revised second application was approved.
Work did not proceed any further at the time on the project due to the sharp decline in the country's financial situation and one that still remains.

 

[allan484]

Hello Architexeter,
I have to apologise that I did not see the last line or so of your response sent yesterday. The only condition that is affected is the one of commencement of the development within a 5 year period.

 

[Architexeter]

I think you should speak to a planning lawyer and get their view on the commencement issue - it sounds like it is well worth pursuing. If you want an informal chat then a chap called Paul at Exeter Planning Law Consultancy should be able to assist. He is ex Local Authority so knows all the boxes he needs to tick.

 

[allan484]

OK Thanks,
I will try ringing Paul tomorrow and will update the forum when hopefully I may have the answer.