Home / Cases / Killian Garvey succeeds in appeal concerning condition precedents
Killian Garvey succeeds in appeal concerning condition precedents
20th April 2021
Killian Garvey succeeds in appeal concerning condition precedents.
Killian Garvey, instructed by Emery Planning, succeeded in respect to a lawful development certificate appeal in the Peak District National Park Authority.
In June 2008, the Appellant secured planning permission in respect to his site for the conversion of a building. The Appellant proceeded with the development and he occupied it since March 2009. The issue was whether the house as constructed was in accordance with the permission.
The Appellant argued that the permission had never been implemented. If that was correct, it would mean that the development was immune from enforcement and significantly, it would not be subject to a condition that only allowed people from the local area to reside in the property.
The reason why the Appellant argued that the permission was not implemented was owing to conditions attached to the permission never having been discharged. The Inspector agreed with this and found that a contamination condition, which required contamination surveys to be conducted prior to the commencement of development, did need to be discharged prior to the development commencing.
The Inspector noted that the Council’s concessions during cross examination ultimately undermined their case on this:
In cross examination at the Inquiry the PA’s witness conceded that Condition 2 related to whether the site was safe for human habitation, and consequently the condition was directly related to the subject matter of the planning permission, a dwelling. However, in his view, Condition 2 did not go to the “heart of the matter.” The reason he gave for this was because the development was for the conversion of an existing building, with only a very small extension to it. It was not for a new building. Furthermore, as the contamination related only to the possibility of elevated soil lead conditions, it was a condition that in his view, only related to the garden area and an investigation of the soils around the existing building. Therefore, despite the construction of the wording of the condition, it did not need to be a pre- commencement condition and it was not necessary for it to be discharged before the commencement of development, only prior to occupation.
However, the letter from Derbyshire Dales District Council’s Pollution Control Officer, dated 25 July 2007, referenced in Condition 2, is clear that this condition would be necessary in order to protect the health of any residents from hazards arising from natural contamination of the site which might be brought to light by development of the land. In cross-examination the PA’s witness confirmed that he deferred to the Pollution Control Officer for expert advice on such matters.
Thus, the Inspector allowed the appeal.
Killian Garvey was instructed by Rawdon and Claire Gascoigne at Emery Planning.
We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. By clicking “Accept All”, you consent to the use of ALL the cookies. However, you may visit "Cookie Settings" to provide a controlled consent.
This website uses cookies to improve your experience while you navigate through the website. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may affect your browsing experience.
Necessary cookies are absolutely essential for the website to function properly. These cookies ensure basic functionalities and security features of the website, anonymously.
Cookie
Duration
Description
_GRECAPTCHA
5 months 27 days
Google Recaptcha service sets this cookie to identify bots to protect the website against malicious spam attacks.
cookielawinfo-checkbox-advertisement
1 year
Set by the GDPR Cookie Consent plugin, this cookie records the user consent for the cookies in the "Advertisement" category.
cookielawinfo-checkbox-analytics
11 months
This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checkbox-functional
11 months
The cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checkbox-necessary
11 months
This cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-others
11 months
This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-performance
11 months
This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
CookieLawInfoConsent
1 year
CookieYes sets this cookie to record the default button state of the corresponding category and the status of CCPA. It works only in coordination with the primary cookie.
viewed_cookie_policy
11 months
The cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.
Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features.
Cookie
Duration
Description
__cf_bm
30 minutes
Cloudflare set the cookie to support Cloudflare Bot Management.
Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors.
Analytical cookies are used to understand how visitors interact with the website. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc.
Cookie
Duration
Description
_ga
1 year 1 month 4 days
Google Analytics sets this cookie to calculate visitor, session and campaign data and track site usage for the site's analytics report. The cookie stores information anonymously and assigns a randomly generated number to recognise unique visitors.
_ga_*
1 year 1 month 4 days
Google Analytics sets this cookie to store and count page views.
CONSENT
2 years
YouTube sets this cookie via embedded YouTube videos and registers anonymous statistical data.
Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. These cookies track visitors across websites and collect information to provide customized ads.
Cookie
Duration
Description
VISITOR_INFO1_LIVE
5 months 27 days
YouTube sets this cookie to measure bandwidth, determining whether the user gets the new or old player interface.
YSC
session
Youtube sets this cookie to track the views of embedded videos on Youtube pages.
yt-remote-connected-devices
never
YouTube sets this cookie to store the user's video preferences using embedded YouTube videos.
yt-remote-device-id
never
YouTube sets this cookie to store the user's video preferences using embedded YouTube videos.
yt.innertube::nextId
never
YouTube sets this cookie to register a unique ID to store data on what videos from YouTube the user has seen.
yt.innertube::requests
never
YouTube sets this cookie to register a unique ID to store data on what videos from YouTube the user has seen.