Response from Mr Tom Whitehead, Brookhouse Group
1. Mr Tom Whitehead, Brookhouse Group : 6 Dec 2018 16:13:00
A typed or handwritten document was submitted. This has been scanned and can be downloaded below:
Please make your comments in the box below. When referring to the schedule, please include the appropriate reference number e.g. MM1.
We write in relation to the above-referenced consultation. We acknowledge that some of the comments relate to matters outside of the track-changes, we believe them to be of sufficient implication to the DPD that they should be carefully considered prior to adoption of the policy. The representation comprises this email as well as the attached draft amendments [SEE ATTACHED DOCUMENT].
In relation to the track changes:
• Policy DM11 itself: the changes to text set out in the attached Word document are requested, to place the correct emphasis on the balanced judgement the LPA will make between according with Policy DM11, and ensuring schemes remain deliverable
Matters outside of the track-changes:
In relation to paragraph 4.1.4, we are concerned that the LPA may be placing themselves in an untenable (and perhaps unlawful) positon:
• The application of M4(2) and M4(3) Building Control standards under planning Policy DM11 may mean that modifications are necessary to the development applied for: modifications which may be material for the LPA (and its consultees) to pay regard to: matters such as levels, for example. There are instances, such as in an area of flood risk, where these judgements may go to the heart of the planning judgement. There may be instances therefore where the correct application (or otherwise) of DM11 can not be lawfully dealt with by matter of a condition. Given this, it would be necessary for a Development Management officer of the LPA to establish beyond doubt, prior to determination of an application, whether a scheme accords with of M4(2) and M4(3) Building Control standards under Policy DM11, or not.
• At present, paragraph 4.1.4 proposes that a planning officer will be tasked with determining whether the dwelling designs submitted ‘accord with the optional standards’. It is our contention that a Development Management officer of the LPA is not qualified to form this judgement. Normally, in order to ensure compliance with Building Regulations M4(2) and M4(3), a Building Control officer would be commissioned to undertake a “Plans Check”. A Plans Check process is time-consuming and expensive: a large scheme would cost in the order of tens of thousands of pounds. It follows therefore that, in the absence of a Plans Check undertaken by a professional Building Control officer, the Development Management officer can not lawfully come to a judgement of compliance, or otherwise.
• In the even the Development Management officer forms a judgement without the opinon of a Building Control officer, it would appear that the Development Management officer would be acting Ultra-Vires.
• In the event the LPA grants planning permission, it is our contention that the LPA is effectively granting Building Regulations approval for matters pertaining to M4(2) and M4(3); it is hard to see how any other interpretation could be arrived at. This would relate to legislation outside of the Planning Acts, and would be Ultra-Vires.
• Further: in the event a planning permission is granted with M4(2) and M4(3) related conditions applied, it is not clear from the policy or supporting text how a judgment will be made towards discharge of those conditions. The obvious consultee would be the Building Control officer, but in the event that the Building Control officer is acting unreasonably, who makes the judgement towards ‘reasonableness’?
Yours sincerely,
Tom Whitehead MRTPI MCIPR
Brookhouse Group
