Leyton Marsh Behind Lee Valley Ice Centre Lea Bridge Road London E10 7QL
Non-material amendment to planning permission 2011/1560 - variation of condition 19 to permit internal fit out works to take place between 08.00hrs and 22.00hrs Mondays to Fridays, 08.00hrs and 18.00hrs Saturdays and 10.00hr and 18.00hrs Sundays.
I believe a Non-material Amendment cannot be lawfully used in these circumstances - please note the following and request that a Variation of Condition application be correctly submitted.
Applicants do not have legal interest in the land required for a Non-material Amendment.
The TCPA 1990 s96A(4) states that an LPA’s power to make a non-material change to an application may only be exercised
"only in respect of an application made by or on behalf of a person with an interest in the land to which the planning permission relates"
The Communities and Local Government guidance ‘Greater Flexibility in Planning Applications’ on non-material amendments at s43 clarifies this as
"Examples of people with a legal interest in the land are:
● a freeholder
● a holder of a lease of over seven years (whether as a head lessee, sub-lessee or tenant of an agricultural holding)
● a mortgagee
● someone with an estate contract (i.e. an option to acquire a legal interest in the land or a contract to purchase the land)"
These are all interests that can be demonstrated by reference to Land Registry records.
It should be noted that there is a specific reference to ‘a lease over 7 years’. The ODA’s licence covers less than 8 months.
The applicants do not have an interest in the land of this type, hence LBWF will be acting ultra vires in accepting and approving this application.
LBWF were informed of this on 26 March 2012 in connection with previous Non-material Amendment 2012/0359. No supporting evidence of legal interest in the land was sought in support of assertions made by the applicant.
I am aware that the applicants claimed on 4 April 2012 by email to have an interest in the form of a
"licence (a short lease)". I believe this to be incorrect and inconsistent. Licences and leases are distinct with a licence used, as in the case, where the intention is to avoid giving rise to a legal interest in the land.
The land to which the planning permission relates is in the freehold ownership of the Lee Valley Regional Park Authority. Usage of the land by the applicant (the ODA) is governed by a limited Licence of 7 July 2011.
The terms of this Licence specifically preclude the conferring of any interest in the land to the applicant:
"4.5 The rights granted under this Licence do not confer on the ODA, any Authorised Person or any other person any estate, right, title or interest in the Licensed Land."
"4.6 This Licence is not intended to create the relationship of landlord and tenant."
The Licence can downloaded for reference here: http://saveleytonmarsh.files.wordpress.com/2012/05/gttv-leyton-marsh-licence-07-july-2011.pdf
Regardless of 6 above, the application is in respect of planning permission affecting land in a different position to that described in the licence deed. The planning permission area is offset approximately 20m north east from the area that the license covers. This can be seen by comparing the plan in Schedule 2 of the 7 July 2012 ODA and LVRPA Licence with those submitted with the original application 2011/1560. Therefore of necessity the applicants can have no interest in part of the land to which the application relates.
In conclusion, LBWF cannot lawfully accept and determine Non-material Amendments to 2011/1560 from these applicants, in addition to the requirement for amendments to be genuinely non-material.
The change is material
Condition 19 was imposed
"To protect the amenities of surrounding occupiers and to minimise disturbance in the area, in accordance with policies ENV6 and BHE3 of the adopted Waltham Forest Unitary Development Plan (2006)." Any amendment to the condition must therefore be material due to the potential for undermining conformance with UDP.
The Planning Committee approved the application on the basis of the Planning Officers report which at s8.44 assured them that
"A further condition controlling the hours of construction and dismantling will also be attached. These hours will be 08:00 to 18:00 Monday to Friday, 08:00 to 13:00 Saturdays with no working on Sundays or Public Holidays.". It is not appropriate for it now to be altered with reference to the Planning Committee, as members would reasonably have expected this to apply throughout the process and voted accordingly.
This change is clearly a Variation of Condition on which the public would want to comment and should be applied for as such under TCPA 1990 s73. Non-material Amendments should not be used for the convenience of applicants where there is a likelihood of 3rd parties wishing to make representations and with the intention of avoiding consultation.
In this case, as with the previous Non-material Amendment 2012/0359, there is considerable interest and desire to comment. LBWF will have been fully aware of this given the history of the application. The purpose of the introduction of this type of amendment application was to reduce unnecessary delay and administration where a change is so inconsequential that there is no likelihood of representations being received or publicity being justified. On this basis alone an NMA is not being acceptably used for the amendment proposed.