Appeal 6006829

The appeal is dismissed.

The main issue in this appeal is whether the proposal constitutes development under the Town and Country Planning Act 1990 (the Act).

The appeal site shown by the red line boundaries on plans 0815/S/02 and 0815/P/02 comprises a driveway access from [address] and adjacent gravelled areas beside and in front of the residential property at [address]. These plans also show blue line boundaries for the site of a dwelling granted planning permission on appeal in 20191. The new house within the blue line area is now largely complete.

The original permission for the new dwelling included access via [address] which relied on third party land. However, the appellants have been unable to secure necessary rights over this land and therefore the originally proposed access is not deliverable. It is proposed to use the existing established access from [address] which previously served garages for access to the new house. As this is under the appellants’ control, they consider that use of this access for the new dwelling would provide a realistic and deliverable alternative to [address].

Section 55 of the Act outlines that development means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any building or other land.

Article 7 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (DMPO) requires an application for planning 1 Appeal Ref APP/P3610/W/19/3222948 and application ref 17/01274/FUL “the original permission/approved scheme” permission to be accompanied by a plan which identifies the land to which the application relates.

The Planning Practice Guidance (PPG)2 states that the application site should be edged clearly with a red line on the location plan and it should include all land necessary to carry out the proposed development (e.g. land required for access to the site from a public highway, visibility splays, landscaping, car parking and open areas around buildings). It indicates that a blue line should be drawn around any other land owned by the applicant, close to or adjoining the application site.

The proposal relates to an existing hardstanding and access. It does not comprise building or engineering operations, a material change in the use of the land or any other type of works included within the meaning of development in section 55 of the Act.

Whilst the development description refers to the use of the access to serve the dwelling in the approved scheme, the red line boundary does not include the site covered by the original permission. Given the requirements of the DMPO and the guidance in the PPG, the proposal cannot be considered on the basis of providing access to the adjoining site as this would require the red line boundary to encompass both sites.

There is reference to various cases considered by the Courts. However, the full judgments have not been provided and there is no substantive evidence that the Courts have accepted the principle that adjacent land could be used for access to a site with a different red line boundary.

Therefore, I conclude that the proposal does not constitute development under the Act. An application to use the appeal site for access to the approved scheme would need to include both the appeal site and the site of the original permission within the red line boundary. Given my findings, it is not necessary for me to consider the merits of any other issues raised in this case.

For the reasons given above, I conclude that the appeal should be dismissed.