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Housing - New Build: CFSH - has anyone had their planning condition removed?

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    I am currently mid way through the build on my project. We were granted planning permission when the Code for Sustainable Homes (CFSH) was still enforce.

    When the government announced their intention to abolish the scheme in March 2015 it was left in force for people who were granted planning permission historically (like me). I asked my local planners at the time if they would release me from the condition, but they declined.

    I've seen some local authorities appear to show a bit of flexibility e.g.:
    https://www.richmond.gov.uk/sustainable_construction_checklist
    Where existing conditions relating to Code for Sustainable Homes have not been discharged yet, you can apply to have the existing condition removed, as per section 73 of the Town and Country Planning Act 1990.

    Has anyone on the forum had any success in being released from their CFSH condition? I'd love to find some examples I can send to my Local Authority to try and demonstrate their is precedence out there for relaxing the condition on my project.

    While it's aims of the scheme might be good, in practice I find it a highly bureaucratic and expensive regulation to comply with. Building a house is hard enough and I'd quite like one less thing to deal with!
    • CommentAuthorDarylP
    • CommentTimeAug 7th 2015
     
    Richard,

    In Wales the CfSH was ditched in Jul 2104, when TAN22 was revoked.
    ALL the LPAs are allowing our clients to vary the PP conditions relating to CfSH compliance.

    Some are asking for the dwellings to meet new Part L, but others are just allowing it to drop with no other conditions imposed.

    Good luck :-)
    ,
  3.  
    Great info. Thank you
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      CommentAuthorted
    • CommentTimeAug 7th 2015
     
    Did you put in a formal application to have the condition removed?
  5.  
    No I haven't formally applied up until this point, I have just spoken to the Council and been given informal advice that they wouldn't entertain an application. Which they don't have to under the regulations.

    It now seems that precedents of "common sense" are being set. I'd like to get some concrete examples together (e.g. examples of planning applications that have had the condition removed) and have another conversation with the Council / apply and see what they say.
    • CommentAuthortony
    • CommentTimeAug 7th 2015
     
    Common sence would be to exceed the standards set by CfSH
  7.  
    I think that depends which standards you are talking about Tony. The code doesn't directly set standards for insulation, air tightness, u-values etc... In those I agree you should aim above Building Regs / the indirect Code targets.

    The code ventures into many areas that have nothing to do with being sustainable and you have to pay professional consultants to get a multitude of official reports. I'd rather spend the £3-4k it has got cost so far on extra insulation!
    • CommentAuthorCWatters
    • CommentTimeAug 7th 2015
     
    Double check how the CIL exemption works because...

    http://planningguidance.planningportal.gov.uk/blog/guidance/community-infrastructure-levy/relief/self-build-exemption/

    Quote:

    "Applicants can apply for a self build exemption at any time, as long as their development has not commenced"


    Section 73 also says ..

    .. the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, andâ€â€

    (a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly.


    So it appears open to them to add new or different conditions if local policies have changed since your original application. eg They could add a S106 requiring a contribution to school places or the maintenance of open space as self builders are only exempt from S106 relating to affordable housing (I think).
  9.  
    Yes, very good point.

    I'd rather have a constructive discussion with the planning department to see if they will relax the condition and what alternative conditions they might add, if any, before putting in an application.
    •  
      CommentAuthordjh
    • CommentTimeAug 7th 2015
     
    Posted By: CWattersSo it appears open to them to add new or different conditions

    Yes, but... When I looked earlier today I was struck by the wording that says that the end result is a NEW planning permission that STANDS ALONGSIDE the existing planning permission. So you get to choose which rules you play by. There's nothing to lose by applying, apart from whatever the fee is.

    Sorry, I don't have time to chase down the reference right now.
  11.  
    What happens if you don't comply and don't ask?

    As far as I can tell it's very unusual for planning conditions to be verified by the planning department, especially if it's not something externally obvious and no-one complains.

    If they did want to be difficult are they really going to take you to court, and if they do surely it would be thrown out if they were trying to enforce a standard that had subsequently been dropped.

    I've got the same issue.
    •  
      CommentAuthordjh
    • CommentTimeAug 7th 2015
     
    Posted By: Simon Stillsurely it would be thrown out if they were trying to enforce a standard that had subsequently been dropped.

    At a guess, it wouldn't be thrown out, because it was still a validly applied planning condition that was still in force.

    If there's no active enforcement, then it's the sort of thing I'd hope a purchaser's solicitor would find if you ever chose to sell. ('hope' because I might be the one employing the solicitor, not because I want to cause you problems)
    • CommentAuthorEd Davies
    • CommentTimeAug 7th 2015 edited
     
    But if it's just a CfSH requirement to have a solar-powered wheel chair-accessible bus stop for bats in every bathroom or whatever, why would you care if your solicitor notices or not?
    •  
      CommentAuthordjh
    • CommentTimeAug 8th 2015
     
    Posted By: Ed DaviesBut if it's just a CfSH requirement to have a solar-powered wheel chair-accessible bus stop for bats in every bathroom or whatever, why would you care if your solicitor notices or not?

    Because as the purchaser you would become liable for any enforcement action that did take place. So I would exect the vendor to buy an idemnity policy for my benefit. In which case, why not clear the condition up front?
  15.  
    Personally I wouldn't leave a planning condition unsigned off, it could make it difficult to get a (regular not self build) mortgage and sell the property in the future. I've had solicitors check this type of stuff very thoroughly in the past.
    • CommentAuthorSimon Still
    • CommentTimeAug 8th 2015 edited
     
    Posted By: djh
    Posted By: Ed DaviesBut if it's just a CfSH requirement to have a solar-powered wheel chair-accessible bus stop for bats in every bathroom or whatever, why would you care if your solicitor notices or not?

    Because as the purchaser you would become liable for any enforcement action that did take place. So I would exect the vendor to buy an idemnity policy for my benefit. In which case, why not clear the condition up front?


    When you come to sell, Planning indemnity insurance is cheap - typically only a few hundred - so about the same as the fee for a variation to a planning permission or a couple of wind powered butterfly houses.

    You could pay the fee and get refused at which point you've alerted the planning department to the fact you'd like the clause removed so they might take more of an interest in making sure it is fulfilled.

    These indemnity insurance policies are a bit of a scam - I think we ended up paying for them on both of our last house purchases - and no-one ever claims on them but they've become a standard get-out-of-jail-free card for conveyancers. Not a bad thing - there is a risk that the council might get arsey about unfulfilled planning conditions but a few years down the line it's very unlikely as they've got too many other things to do. Round here I regularly see problematic failures (eg failure to provide wheelie bin storage) that aren't followed up on.

    I for one would be glad not to have to finish faking a log of all our deliveries and where they'd come from.
    • CommentAuthorDarylP
    • CommentTimeAug 8th 2015
     
    :bigsmile::bigsmile::bigsmile::bigsmile::bigsmile::bigsmile::bigsmile::shocked::wink:
    Now.... who would do that to 'scrape the barrel' of CfSH credits......?
    • CommentAuthorCWatters
    • CommentTimeAug 8th 2015
     
    If you don't get a planning condition signed off then after 10 years you can apply to have it discharged (removed?) on the grounds that it can't be enforced.
    •  
      CommentAuthordjh
    • CommentTimeAug 8th 2015
     
    Posted By: CWattersIf you don't get a planning condition signed off then after 10 years you can apply to have it discharged (removed?) on the grounds that it can't be enforced.

    I guess that's generally true. But I think the worst case is that a condition of the form 'you must do X before you do Y' invalidates the planning permission if you do Y without doing X, so in theory you're at risk of having to pull the house down for ten years. I guess it depends on your personality, but I'd rather get the condition discharged (or removed)!
    • CommentAuthordb8000
    • CommentTimeAug 11th 2015
     
    you won't get an indemnity policy for an unfulfilled condition, if you are still building. You'd get a policy for an "old" condition. How old depends on the underwriters.

    In relation to an "old" condition, contacting the council about the conditions and getting an indemnity policy are mutually exclusive. You won't get insurance if you have alerted the council.

    if you are at the build stage, it's best to get it signed off or varied. It's a standard enquiry by a decent solicitor and if there's a bank involved, the buyer won't have a choice to take a risk or not.

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