The Planning Inspectorate
Bob Milton asks The Planning Inspectorate for clarification
"Can you clarify the guidance on whether all works and fencing which does not have lawful consent needs to be included in any s38 application or is it just that which has been carried out since the enabling date of the CA2006 ? "
The Planning Inspectorate replied
It is difficult for me to answer your query because I do not want to risk prejudicing any Inspector's future decision.
It is up to the applicant what they apply for and as far as I am aware there is no rule that says unlawful works have to be included in any application.
If it came to light that some works stated in an application were undertaken before the new regulations came into force then, strictly speaking, s38 would not apply to these works because the previous consent mechanism for retrospective works under s194 of the Law of Property Act 1925 has been repealed. However if this is the case then the Inspector has the power to decide, being mindful of guidance and evidence put forward by the parties, whether or not those works should be considered as part of their determination.
Enforcement regimes for unlawful works are in place and our guidance notes 12 (Enforcement against unlawful works on common land) and 12a (Unlawful works erected before the 1 October 2007) cover these. They can be found at the link below.
It is worth noting that the Inspector determines applications having regard to the statutory tests in light of the guidance. For example, the Inspector should have regard to the interests of the neighbourhood in determining a particular application but should not consider the guidance on that test to be the last word on the subject.
As mentioned above the Inspector will make a decision by balancing the application with evidence put forward by objectors and supporters, whilst be being mindful of the guidance and what he/she sees on site.