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Intentional Unauthorised Development

As of 31st August 2015 the Government has introduced a planning policy to make intentional unauthorised development a material consideration that would be weighed in the determination of planning applications and appeals. The issue of intentional unauthorised development was first raised last year within the DCLG’s consultation on the ‘Planning & Travellers’ document and at this time specifically only appeared to relate to breaches of planning control involving travellers in Green Belt locations.

 

However having made a rod for their own back by stating that a shift in traveller policy will ensure fairness in the planning system for all, DCLG had no option other than to roll out this policy to all types of unauthorised development, not just those involving Travellers.

 

A previous article for this newsletter raised a number of concerns about how to prove a breach of planning control was intentional, whether intentional unauthorised development was a material consideration when considering the expediency of enforcement action and what weight should be given to this material consideration in the decision making process.

 

None of these questions have been answered in the short statement from the Chief Planner and whilst additional powers to help tackle unauthorised development are always welcome, it is unfortunate that this particular shift in policy is likely to cause more headaches for enforcement officers and planners rather than making their job easier.

 

The DCLG has stated that it will consider the recovery of a proportion of relevant appeals in the Green Belt for the Secretary of State’s decision to enable him to illustrate how he would like his policy to apply in practice. At the time of writing we have seen no relevant appeal decisions within which Inspectors have referenced this policy change, however it is expected that not before too long decisions which make mention of intentional unauthorised development will start to trickle through.

 

These additional powers leave a number of questions unanswered. It is very difficult to understand how intentional unauthorised development can be a material planning consideration in the determination of a planning application. If something was built intentionally in contravention of planning control, does that mean that the usual planning considerations will now be overridden by this material consideration that the development was intentionally carried out in contravention? And exactly how much weight should such a consideration have? Does it override perfectly good planning policies, or will there need to be a test as to the particular flagrancy of conduct? And how are local authorities or inspectors meant to assess this? The mind boggles.

 

Therefore it appears that as with any change in planning policy we will have to wait and see how this issue pans through the appeals process and more than likely the courts.

 

Neill Whittaker

Izindi Visagie

 

Ivy Legal

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