Prior Approval but Council imposing impractical condition for Refuse Management

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    Prior Approval but Council imposing impractical condition for Refuse Management

    I have recently been granted permission under the Permitted Development/Prior Approval route to turn a small office block into flats. However, the Council has imposed the condition:

    "The development hereby permitted shall not be occupied until a Refuse Management Plan has been submitted to and approved in writing by the Local Planning Authority. The plan shall include: details of the management company to be set up; the employment of a private contractor to collect the refuse; measures to be taken if no private contractor is available at any time in the future (such as the employment of a person or persons to ensure bins are wheeled to the collection point); and that bins will not be stored in the open or at the collection point apart from on the day of collection."

    Under PD/Prior Approval, is the Council actually entitled to impose this condition? And if so, can they dictate the location and style of bin store? There is no access to the street from the rear of the property and they are likely to object to a bin store located at the front as in a Conservation Area. So I am rather between a rock and a hard place on this...

    #2
    Not sure, but understand why they are doing it. Have a major headache where I own houses. For the past 4 years nothing has been done and my dd to management company has been returned every month for 4 years. Site looks diabolical and I now pay someone myself to clear rubbish away and do a bit if gardening so my investment does not fall any further. Ok to develop and not worry about what happens after developers have made money and leave.

    Comment


      #3
      Yes. Understood why, Nosharkbait, but there is a need to be reasonable too. You will see that I said we would be happy to put a bin store at the front of the property (within our land).

      Is anyone able to answer my original question, please?

      Comment


        #4
        Part 3 Class 0 of the Town and Country Planning (General Permitted Development) (England) Order 2015 relates to change of use from Class B1a (Offices) to Class C3 (residential use).
        These are the three things that need prior approval, although if any one is considered unacceptable then it seems that the only recourse is to state that is why the development cannot comply with the GPDO. There appears to be no mechanism to allow an application to be acceptable with conditions imposed, as though this was a planning application to be decided by the LPA.

        In a planning permission where conditions are imposed there has to be a stated reason for each one of the conditions.
        Was there an explanation for the condition imposed on a prior approval application?
        Conditions
        O.2 Development under Class O is permitted subject to the condition that before beginning the
        development, the developer must apply to the local planning authority for a determination as to
        whether the prior approval of the authority will be required as to—
        (a) transport and highways impacts of the development;
        (b) contamination risks on the site; and
        (c) flooding risks on the site,
        and the provisions of paragraph W (prior approval) apply in relation to that application.
        Class W explains what the LPA can do about such a prior approval. Imposing a condition does not seem to be permitted, but one has to carefully consider all the words used in Section W of part 3 regarding whether the LPA considered that there would be a "contamination risk on the site"
        Procedure for applications for prior approval under Part 3
        W.—(1) The following provisions apply where under this Part a developer is required to make an
        application to a local planning authority for a determination as to whether the prior approval of the
        authority will be required.
        (2) The application must be accompanied by—
        (a) a written description of the proposed development, which, in relation to development
        proposed under Class C, M, N or Q of this Part, must include any building or other
        operations;
        (b) a plan indicating the site and showing the proposed development;
        (c) the developer’s contact address;
        (d) the developer’s email address if the developer is content to receive communications
        electronically; and
        (e) where sub-paragraph (6) requires the Environment Agency(a) to be consulted, a sitespecific
        flood risk assessment,
        together with any fee required to be paid.
        (3) The local planning authority may refuse an application where, in the opinion of the
        authority—
        (a) the proposed development does not comply with, or
        (b) the developer has provided insufficient information to enable the authority to establish
        whether the proposed development complies with,
        any conditions, limitations or restrictions specified in this Part as being applicable to the
        development in question.
        (4) Sub-paragraphs (5) to (8) and (10) do not apply where a local planning authority refuses an
        application under sub-paragraph (3) and for the purposes of section 78 (appeals) of the Act such a
        refusal is to be treated as a refusal of an application for approval.
        (5) Where the application relates to prior approval as to transport and highways impacts of the
        development, on receipt of the application, where in the opinion of the local planning authority the
        development is likely to result in a material increase or a material change in the character of traffic
        in the vicinity of the site, the local planning authority must consult—
        (a) where the increase or change relates to traffic entering or leaving a trunk road, the
        highway authority for the trunk road;
        (b) the local highway authority, where the increase or change relates to traffic entering or
        leaving a classified road or proposed highway, except where the local planning authority
        is the local highway authority; and
        (c) the operator of the network which includes or consists of the railway in question, and the
        Secretary of State for Transport, where the increase or change relates to traffic using a
        level crossing over a railway.
        (6) Where the application relates to prior approval as to the flooding risks on the site, on receipt
        of the application, the local planning authority must consult the Environment Agency(b) where the
        development is—
        (a) in an area within Flood Zone 2 or Flood Zone 3; or
        (b) in an area within Flood Zone 1 which has critical drainage problems and which has been
        notified to the local planning authority by the Environment Agency for the purpose of
        paragraph (zc)(ii) in the Table in Schedule 4 to the Procedure Order.
        (7) The local planning authority must notify the consultees referred to in sub-paragraphs (5) and
        (6) specifying the date by which they must respond (being not less than 21 days from the date the
        notice is given).
        (8) The local planning authority must give notice of the proposed development—
        (a) by site display in at least one place on or near the land to which the application relates for
        not less than 21 days of a notice which—
        (i) describes the proposed development;
        (ii) provides the address of the proposed development;
        (iii) specifies the date by which representations are to be received by the local planning
        authority; or
        (b) by serving a notice in that form on any adjoining owner or occupier.
        (9) The local planning authority may require the developer to submit such information as the
        authority may reasonably require in order to determine the application, which may include—
        (a) assessments of impacts or risks;
        (b) statements setting out how impacts or risks are to be mitigated; or
        (c) details of proposed building or other operations.
        (10) The local planning authority must, when determining an application—
        (a) take into account any representations made to them as a result of any consultation under
        sub-paragraphs (5) or (6) and any notice given under sub-paragraph (8);
        (b) have regard to the National Planning Policy Framework issued by the Department for
        Communities and Local Government in March 2012(a), so far as relevant to the subject
        matter of the prior approval, as if the application were a planning application; and
        (c) in relation to the contamination risks on the site—
        (i) determine whether, as a result of the proposed change of use, taking into account any
        proposed mitigation, the site will be contaminated land as described in Part 2A of the
        Environmental Protection Act 1990(b), and in doing so have regard to the
        Contaminated Land Statutory Guidance issued by the Secretary of State for the
        Environment, Food and Rural Affairs in April 2012(c), and
        (ii) if they determine that the site will be contaminated land, refuse to give prior
        approval.
        (11) The development must not begin before the occurrence of one of the following—
        (a) the receipt by the applicant from the local planning authority of a written notice of their
        determination that such prior approval is not required;
        (b) the receipt by the applicant from the local planning authority of a written notice giving
        their prior approval; or
        (c) the expiry of 56 days following the date on which the application under sub-paragraph (2)
        was received by the local planning authority without the authority notifying the applicant
        as to whether prior approval is given or refused.
        (12) The development must be carried out—
        (a) where prior approval is required, in accordance with the details approved by the local
        planning authority;
        (b) where prior approval is not required, or where sub-paragraph (11)(c) applies, in
        accordance with the details provided in the application referred to in sub-paragraph (1),
        unless the local planning authority and the developer agree otherwise in writing.
        (13) The local planning authority may grant prior approval unconditionally or subject to
        conditions reasonably related to the subject matter of the prior approval.

        Comment


          #5
          Many thanks, Pilman

          The argument of the LPA [I managed to speak to the Head of Planning since first posting] appears to be around item (13) in the Section W rules you are quoting: "(13) The local planning authority may grant prior approval unconditionally or subject to
          conditions reasonably related to the subject matter of the prior approval."

          They argue that because the application is effectively for Change of Use to C3, a condition for a Refuse Management Plan is reasonably related to the subject matter of the prior approval and so may be imposed. I would be really grateful if you have any good argument or cases we could quote to refute this.

          Comment


            #6
            I think there is very little precedent since the GPDO was introduced in April 2015.

            Prior approval ONLY needs to have considered the three elements set out in Class O
            (a) transport and highways impacts of the development;
            (b) contamination risks on the site; and
            (c) flooding risks on the site,

            There appears to be no other matters that should be considered because every prior approval under Class O will be a change from office to residential.

            I suppose car parking standards could be considered under (a) and flooding risk under (c), although whether removal of rubbish is a "contamination risk on the site" as it exists at the present or when it has been converted, is quite questionable.

            An appeal against the condition is worth considering, although I haven't yet found out if there is such a procedure, because as a retired man I no longer need not keep up to date with planning law.

            Comment

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