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+--- Thread: Theoretical Developer loophole question (/showthread.php?tid=1074)
Theoretical Developer loophole question - BAJR Host - 10th August 2008
Do you need to apply for planning permission to dig a pond for example
funny, I was just talking about that .. a recent client had me in for a new glass extension into garden... but the pond they had made... (deeper than the foundations for the glasshouse) did not need it.... Go figure... pray that developers don't start building ponds everywhere!
"I don't have an archaeological imagination.."
Borekickers
Theoretical Developer loophole question - Sparky - 10th August 2008
Some things should be kept to yourself...
I have worked on projects where water storage was required (very large ponds) but these had to passed by the Environment Agency and by Englsh Nature due to ecological sensitivities. Archaeology was also considered.
Theoretical Developer loophole question - BAJR Host - 10th August 2008
nice fish though
"I don't have an archaeological imagination.."
Borekickers
Theoretical Developer loophole question - Anna Stocks - 11th August 2008
I've been trying to get confirmation from our local planners on when is a hole big enough to require planning consent, and the general (not very helpful) response is, if you have to have a digger to excavate it, it probably requires planning consent for engineering works. I am not sure how accurate that is - I will update if I manage to find out the "official" wording.
Theoretical Developer loophole question - BAJR Host - 11th August 2008
Cue hundreds of shovel weilding navvies!
This would be an interesting confirmation - thanks Anna
"I don't have an archaeological imagination.."
Borekickers
Theoretical Developer loophole question - monitor lizard - 11th August 2008
It's not just the size of the hole (ahem), but it's function, proximity to other buildings, etc.
The crux is what is considered enabling and does not need planning permission, versus what constitutes development commencing. Geotechnical works, for example, do not need permission, so in theory a developer could 'test' 100% of the site and dig it all away. I suspect something similar could be done with remediation, but this is generally conditioned. In BAJR's example, I would request the enforcement officers have a look, as this seems like development to me!
Recentently, I had a site where there was an archaeology condition and a remediation condition. Both had the same 'no development shall take place' statement, and they decided to do the remediation first. And cleared the entire site. No more archaeology. So did they breach the condition, or was the entire permission invalid because it was contradictory?
And of course there is the demolition of buildings not in a conservation area....I would think that more damage to the historic environment is done through this perfectly legal undertaking than pretty much anything else....
ML
Theoretical Developer loophole question - Steven - 11th August 2008
Hi Chaps
Work such as you describe would be considered engineering work under the TCPA in terms of both Operation and Use. It is also classed as "building" as it is work normally carried out by a builder and is part of a process to permanently attach a "structure" to the ground. The fact that the developer is carrying out the work in advance of lodging a planning application makes it a clear that it is a planning issue and so does the fact the the work has materially changed the use of the site.
So all of this work would need planning permission and is not a loophole. Maybe more importantly to profesional archaeology is that the archaeological unit should have checked with the LPA archie before starting this job as it was always likely to be a planning issue and if they are a RAO or IFA Member they might be in slightly murky waters concerning IFA Stardards.
The solution is therefore simple enforcement action against the developer and the LPA archie now has very good reasons to require a predetermination evaluation if they need any more info, or in fact refuse permission if the archaeology so warrants.
Ponds are more of an issue. A pond is normally permitted development (say a garden fishpond) unless it is over 0.25 hectares or is used for commercial purposes (such as storing water for firefighting or fish stocking for fishing etc). The Environment Agency sometimes build ponds when they have borrow pits (in clay for example) and then allow the pit to fill with water to provide the landowner a pond. This is normally considered not planning because of the EA statuary duties and because the pond would be for wildlife reasons. If the landowner then wanted to use it for fishing and charged people they would need planning permission for the change of use (and possibly retrospectively for the pond).
Steven
Theoretical Developer loophole question - monitor lizard - 11th August 2008
Actually, thinking about this further, I have had exactly the same situation. If there is no planning permission, there is no breach of condition, and therefore no enforcement action can be taken. Unfortunate but logical. I remember circling around this with an enforcement officer previously.
I am confused with how using a mechanical excavator would dermine if something needs planning permission. That's just silly!
ML
Theoretical Developer loophole question - BAJR Host - 11th August 2008
no planning permission, there is no breach of condition, and therefore no enforcement action
Same here... so... I am now under the impression that laying foundations can be part of permitted development.. and if say there is a limit to the ammount... answer do it in small chunks that do not exceed. keep material in the site boundaries .. that should solve any requirements to have planning notified about transport of material off site...
At the end of the day... it is becoming worryingly clear that this theoretical is indeed a widespread issue...
Mr Dodgy the Developer can easily circumvent archaeology if so wishing. (my all time fave is the fine of 2k for damage to archaeology - developer signs check as it was cheaper than getting in archaeologists!)
Most developers are actually doing the right thing... don't get me wrong, I don't think all Developers are Tinted window Navvarra driving growlers... We seem to have a range of holes that a Nissan pickup can be driven through with ease...
Question: What are they? How to butress the defences.. collectively we can surely create an emergency document to reach for in times such as these.
so
1. Developer decides to use permitted development to lay foundations in boxed out basement.
2. Developer removes all the soil to a depth of 2 m but stores it on site. (whoops all the archaeology is now in handy pile)
3. The shifting goalpost - developement changes due to unforeseen conditions, had to act immediatelt, otherwise it would have been unsafe..?
"I don't have an archaeological imagination.."
Borekickers
Theoretical Developer loophole question - Anna Stocks - 11th August 2008
In response to Monitors Lizard's comment above - for clarification, and having re-read my earlier e-mail and realised it's a bit unclear, the needing a mechanical excavator is not used to determine if something needs planning permission, it's apparently more of an informal tool used by our local planners for assessing whether or not someone should contact the LPA to confirm whether or not they need planning consent - [u]if normally the works would be allowable under permitted development rights, but they are of such a large scale that they may not be as they would count as engineering works</u>.
eg. Me - Hello planner, this householder wishes to terrace their garden - I'm concerned about the archaeology - do they need planning consent (and hence can we deal with archaeology, rather than not being able to because it's permittted development)?
Planner - Hum, depends on scale of groundworks - do they need a digger?
Me - yes.
Planner - Get them to consult us formally on whether or not they need planning consent - if its big enough to need a digger, it probably does....
Me - is there a specific size of hole that would need a planning consent?
Planner - no, it depends on what it is for etc etc.
Apparently, this is only applicable for works associated with a single house (i.e. in someones garden) - larger developments have different Permitted Development rights.