Acting on behalf of objectors Derek Ching and Russell May of Boyes Turner’s Development & House Building and Property Litigation teams have forced a local authority in Berkshire to concede in Judicial Review proceedings that a decision made in 2016 to give prior approval to a conversion of offices to residential use under Permitted Development Rights was improperly made.
Council officials had failed to identify that the property, although not a listed building, was located within the curtilage of a listed building. As a result the Permitted Development Rights procedures allowing the conversion of offices into residential accommodation without the need for a full planning application did not apply and the decision of the Council to give Prior Approval was therefore a nullity.
The claim had to be issued within the 6 week deadline for issuing Judicial Review proceedings and was supported by extensive historic planning records for the development of which the property forms part, documents which the Council had overlooked when dealing with the original prior approval proposals.
Derek Ching, Partner in the Development and House Building Team said:
“This case demonstrates that developers (and councils) need to examine the full planning history of a site before embarking on an application and not just rely on the limited, more modern, planning records that may be publicly available on the Council website.
Care needs to taken to assess the true extent of the curtilage of a listed building, something that can often be extremely hard to interpret as it is often left to the subjective judgement of surveyors and conservation officers and depends on the historic layout and context as well as what has happened in the intervening years to the surrounding area.
Developers also need to remind themselves that even consents obtained through the change of use provisions of the Permitted Development Rights can be overturned by way of judicial review if the regulations do not apply to the site in question. As a result they need to allow for the period for a legal challenge to safely expire before embarking on what might otherwise turn out to be unauthorised development.”
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.