Michael Rudd secures dismissal of appeal against refusal to discharge a materials condition

Michael Rudd secures dismissal of appeal against refusal to discharge a materials condition

Michael Rudd, instructed by Ross Chambers, solicitor at Stratford-on-Avon District Council and assisted by Clare Eynon, Planning Manager and Tamasine Swan, Senior Planner has secured the dismissal on appeal of an attempt by an appellant to resurrect a 1995 planning permission by way of an appeal against a refusal to discharge a materials condition.

The appellant had secured planning permission in 1995 for a golf clubhouse and leisure facilities serving an existing hotel and golf course.  The attempt in 2017 to discharge a materials condition on the permission was rejected on the basis that the permission had expired.

On appeal the appellant attempted to claim lawful commencement by way of demolition works and/or associated highways works, or alternatively lawful commencement by way of operations pursuant to the permission.  The appeal raised matters relating to hybrid permissions (Lawson Builders Ltd), lawful commencement, pre-commencement conditions, overlapping permissions (Robert Hitchens Ltd) and whether operations pursuant to one can be sufficient to commence another, inconsistent permissions (Pilkington) and the loss of existing use rights, and the often difficult issue of whether demolition can amount to a material operation (Field v FSS), made more difficult in this matter as at the time of the claimed demolition such was not expressly included in the Town and Country Planning Act 1990.

In dismissing the appeal the Inspector found in favour of the council in all regards, except the Pilkington point which she did not need to determine.

The appeal decision can be found here.

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