Business Clinic: Do planning delays mean I can build shed?

Whether you have a legal, tax, insurance, management or land issue, Farmers Weekly’s Business Clinic experts can help.

Rebecca Stanton, a solicitor at Thrings, sets out possible solutions to a frustrating planning delay.

See also: Business Clinic: neighbour is restricting our right of way 

Q. I applied for full planning permission on 15 June 2020, with detailed drawings for a larger sheep shed to replace an old shed. This is a 200-acre farm with just two small buildings in the Pembrokeshire National Park.

My agent and I heard nothing from the planning officer for weeks, after many emails and talking to the parks secretary.  

An email reply eventually arrived from my planning officer on 2 October, saying he had contacted all authorities involved and no objections had been received, nor from the public. He had visited the site and recommended approval, adding that it would be signed off and approved in the next 10 days.

After two weeks there had been no further contact, and after another three weeks of emails finally the planning officer emailed back saying that an objection had come in since 4 October (after the consultation period ended about 15 August).

He now wants to re-site the shed to a ridiculous place alongside the road. He said he knew it was late in the day but because there’s a listed building next door, the listed building officer thought the new building was too long to put it on the proposed site, despite having written confirming they were happy in July.

Under the normal eight-week period this application would have sailed through, with planning granted.

My architect has emailed the planning officer once again, no reply after almost a week and no phone contact. They have never asked for a planning extension and just blame Covid for slow working. It’s been six months now and the planning officer has not written to my agent/architect at all.

However, the same officer is processing all new applications in six to eight weeks. I ordered the building after the first positive email from the planning officer and booked a time slot with builders. Do I have a legal right to continue erecting the building?

A. The short answer to your question is that, at present, you are unlikely to be able to go ahead with your project lawfully; it would be unauthorised and may be subject to planning enforcement action. However, there are various options available for you to obtain the necessary planning consents and move it forward.

In terms of the delay so far, considering the Covid-19 pandemic, the UK government introduced temporary measures to relax planning control and encourage local authorities to take a more lenient approach to enforcement.

However, the official line is still that planning authorities should still determine applications under the existing timescales. Your application should have been determined within an eight-week period. Regardless of the Ministry of Homes Communities and Local Government’s flexibility in 2020, this rule remains.

We would recommend contacting your allocated planning officer, or the head of development control at the council, to talk about the delay. It is still well worth trying to open a constructive dialogue about whether the council requires further input from you or if the application has been transferred to another officer.

You may even be able to make a fresh application free of charge. Given your already extensive efforts to chase the council, perhaps check its website for any updates on your application or changes to its procedures in recent months that may explain the delays.

Option to appeal

Once you have exhausted these avenues, there is an option to appeal to the secretary of state against the council’s treatment of your application using the grounds that it has not been determined within the appropriate timeframe.

This would involve the council being challenged on why the application was not determined within the applicable time limits, and what its decision would have been if it had done so.

Making an appeal should be your last resort. Your project would be delayed further as it could be some months before a decision is returned. The procedure and the application forms involved are riddled with traps around serving the correct notices and providing information within strict deadlines, and you would not be given a second chance.

Bear in mind that each appeal case is decided on its own merits (the council’s conduct so far would not be considered), so assessing your chances of success is vital. Seeking specialist advice from planning experts for their view before you launch an appeal and guidance throughout the process is advisable.

Another option could be to explore your permitted development rights under the prior approval regime. In this way you can acquire a deemed consent once the 28-day period lapses. It could also be a useful fallback paving the way for a full planning application if necessary.

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