Agenda item

(Director of Governance) To consider the attached report.

That the Sub-Committee reviewed their decision on the application EPF/2660/13 in the light of additional factual information, representations by the applicant and legal advice.

On 12 February 2014 this Sub-Committee refused to remove an extant section 52 legal agreement attached to planning permission ref EPF/1127/82. The proposal was put forward under application EPF/2660/13.

Planning permission EPF/1127/82 permitted the use of a building within the Theydon Park Road Chalet Estate as a dwelling house. No conditions limiting the use were included on the permission but its occupation was restricted to named individuals by an s52 Agreement. Those persons have since passed away and as a consequence, the agreement in effect prohibits the use of the dwelling house for its lawful purpose.

Consequently, the applicants’ only recourse was to seek a judicial review of the decision or to apply to the Upper Tier Land Chamber under s84 of the Law of Property Act 1925 for the agreement to be removed. Both courses of action would involve significant legal costs and the applicant would therefore almost certainly seek to recover them from the Council if he were successful. The Council would be liable for its own legal costs in defending its position against such an application.

The Council would be at risk of an award of costs if it was found to have been unreasonable in refusing to remove the agreement and therefore causing the applicant to apply for judicial review or to the Lands Tribunal.

The applicant had put the Council on notice that he intended to make an application to the Upper Tier Land Chamber but had agreed to delay the application until after this meeting of the Sub-Committee.

If the Council refused to lift the s52 Agreement it would be required at any hearing to set out what planning purpose it seeks to achieve by preventing the occupation of the house by seeking to retain in leisure use.

Following the earlier refusal officers have now researched the planning status of the other properties within the estate and it could be seen that the majority of the properties have had either planning permission for unrestricted residential use or have established a lawful residential use. No other property was found to have a similar s52 agreement restricting occupation in any way.

Furthermore, many of the permanent dwellings on Theydon Park Road have been established through express planning consent by the Council throughout the last fifty years. As such the position of the Council on this road had been favourable to unrestricted residential use. 

Further Legal advice had been sought and the Council had been advised that if an application was made to the Upper Tribunal there would be a very good prospect of the s52 agreement being discharged on the basis that it was now obsolete.

            RESOLVED:

            Members noted that in light of the new information presented in the report, it was agreed to remove the legal agreement so as to allow the dwelling to be used permanently by persons other than those mentioned in the aforementioned legal agreement.