Not one of from this practice, but an interesting case around the validation of planning applications and definitions of dwellinghouses for various planning purposes and the care needed around terminology.

An application was made for development described as “Change of use of land for the siting of 15 timber lodges and associated works (part retrospective)”. The Council using its powers under S62ZA(2) or (4) of the Act served a notice requiring in simple terms a higher planning fee [based on the proposed lodges being dwellinghouses] and that 15 dwellinghouses (for the purposes of the Development Management Procedure Order in Wales) amounted to major development. The latter triggered both reporting under the Councils adopted Local Validation List and carrying of out Statutory Pre-application Community Consultation. The applicants appealed against the notice of invalidity.

The initial PEDW determination on the invalidity point was subject to Judicial Review and quashed by the Courts on 24 February 2023 as PEDW had originally found that the proposed lodges, although falling within Use Class C6 (Short term Lets) were not dwellinghouses. At JR the parties agreed that was an error as a matter of law and the appeal remitted for redetermination.

PEDW has now issued its redetermined decision which corrects the error. It allows the non-validation appeal in respect of the point that the lodges are not dwellinghouses for the purposes of Fee Regulations (in Wales) as those Regulations define a dwellinghouse as a building which is used as a single private dwellinghouse and for no other purpose. The Planning Fee should be calculated on the basis of them being buildings other than dwellinghouses.

However, the PEDW officer in dealing with whether the non dwellinghouses were in fact dwellinhouses for Use Classes Order also found:

… that holiday lodges would fall within Class C6 of the Use Classes Order, Short-term lets, i.e. “Use of a dwellinghouse for commercial short-term letting not longer than 31 days for each period of occupation”. As the proposed 15 units would constitute dwellinghouses for these purposes, the proposal does meet the definition of Major Development set out in Article 2 of the DMPO. The application is therefore one to which the requirement for Pre-Application Consultation under Section 61Z(1) of the 1990 Act relates, as per Article 2B of the DMPO.

The invalidity appeal did not succeed on that ground. Therefore to secure a valid application it will be necessary to carry out pre-application consultation as required for major development in Wales.

An example we think here of the Fee Regulations not catching with Use Classes Order amendments. So we wouldn’t be surprised if a non-too distant update of the Fee Regulations will do some catching up.