“26. … The appellant accepts that major rebuilding work would be required to achieve a development that would accord with the 2007 planning permission. In this case, the development constructed varies in footprint, width, depth and height and the works would be tantamount to a newly constructed development. I am not satisfied that I could specify this as an alternative requirement to those in the notice in sufficiently clear and precise terms, given the major rebuilding work that would be necessary. The suggested alternative would not remedy the breach. 27. To conclude, the complete removal of the double garage and all associated materials as is set out in the requirements, does not exceed what is necessary and the appeal on ground (f) must fail.”
“1...The current application seeks to reduce the size of the existing unlawful building. Your attention is however drawn to the Planning Inspector's Enforcement Appeal decision in respect of the building...The Inspector dismissed the ground (a) appeal on the grounds that, taken together with previous extensions, the garage constitutes a disproportionate addition to the original dwelling house, paragraph 17. The existing building measures 11.5 x 6.8 metres or a footprint of 78 sqm with a ridge height of 6.2 metres. Given the proximity of the garage to the host dwelling, the inspector opined that this represents an increase in the footprint of the original dwelling of 130%. The current proposal would measure 7.9 x 6.9 metres or a footprint of 54.5sqm with a ridge height of 4.6 metres thus representing an increase in the footprint of the original dwelling of 91%. Even with the proposed 1.6 metre reduction in the height of the building, the conclusion reached by the Inspector would likely be the same. 2. Furthermore, by seeking a part demolition and lowering of the roof of the existing unlawful building, the effect of the current proposal is to alter the terms of the Enforcement Notice which requires the complete demolition of the garage. This proposition was considered under the ground (f) appeal and failed. At paragraph 27, the Inspector concluded that the complete removal of the garage and all associated materials did not exceed what is necessary to remedy the breach. It is therefore not possible to validate an application that seeks permission to alter or amend a building which is itself unlawful.”
“....when Parliament used the concept of similarity or substantial sameness in section 70A it had in mind in particular points of similarity that were relevant to the question of whether the section 70A power should be used. The fact that, as in this case, a fresh application shares with the old one a characteristic that was judged fatal to the success of the previous application is, in my view, a relevant point of similarity.”
“A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are: […] the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building”
“Where an authority considers that an application is similar, it is not automatically obliged to decline to determine the application. The purpose of these powers is to inhibit the use of ‘repeat’ applications that the local planning authority believes are submitted with the intention of, over time, wearing down opposition to proposed developments. They are, however, designed to be flexible and to give local planning authorities the discretion to entertain ‘repeat’ planning applications where they are satisfied that a genuine attempt has been made to overcome the planning objections which led to rejection of the previous proposal or there has been a material change in circumstances.”
“The Council accepts that the reference in the letter of3 June 2015 to subsections (2) and (3) of s.70A was an error. The reference should have been to subsections (4A) and (4B) of section 70A. However, the reference to the erroneous subsections does not cause the Claimant any substantial prejudice (or indeed, any prejudice) and does not render the Council’s decision unlawful.”
“3. Following the receipt of Mr Gill’s planning application the matter was assigned to Mr Bunu by his Line manager, Mr Hale. I was aware of the application and the planning history relating to the site. Mr Bunu considered the application in the context of Section 70A and discussed the case with me. He advised me that in his opinion the application should be declined on the basis that it was substantially the same as that considered and refused by the Secretary of State in March 2014 under a deemed application pursuant to Section 177(5) of the Town and Country Planning Act. Mr Bunu did not think there had been a significant change in the considerations since that dismissal. I concurred with Mr Bunu’s opinion and felt it was appropriate for the Council to exercise its discretion to refuse to determine the application under s.70A. My decision was informed by the discussions I hd with Mr Bunu but the decision to decline to determine the application was mine. Such an approach is very common. To suggest that Directors (or managers) have to take all decisions without reference to case officers is to fail to understand Council processes or the practical realities of local authority administration. One of the main roles of case officers in the Development Infrastructure department is to make recommendations in respect of applications, whether to their Directors/Managers or the Development Management Committee, in order to inform the decision-making process. Of course, Directors/Managers and the Development Management Committee are not obliged to follow the officer recommendations and there are instances where they disagree with the view of the case officer. In this particular instance, however, having discussed the application with the case officer, Mr Bunu, I considered that the Council should exercise its discretion under section 70A to decline to determine it. 4. I understand that it is said on Mr Gill’s behalf that the first witness statement of Mr Bunu gave the impression that he had taken the decision to decline to determine the application. Mr Gill is aware that Mr Bunu is the case officer dealing with his case, not least because Mr Bunu spoke to Mr Gill’s agent on the telephone on1 June 2015 in respect of the May 2015 application. He is aware that the decision to decline to determine the application was made by me, because I sent him a letter containing the decision which was signed by me. Given that Mr Bunu has dealt with the various applications made by Mr Gill in the past and given that he is the case officer who made the recommendation in respect of the May 2015 application that I agreed with and endorsed in my decision, I considered it appropriate for Mr Bunu to provide a witness statement to accompany the Council’s Summary Grounds of Resistance. Given the pressures on my time as Development Infrastructure Group Manager in a busy local authority, such division of labour is wholly unexceptional.”