Office to residential – the new right to change of use

As I mentioned in my recent piece on Larger Domestic Extensions [12 May 2013], the latest amendments to the GPDO, laid before parliament on 9 May and coming into force on 30 May, include other important changes to permitted development rights.

The right to make certain changes of use is to be found in Part 3 of the Second Schedule to the GPDO, and the new amendments have added to Part 3(among other changes that we will come to later) a new Class J. This consists of the change of use of a building and any land within its curtilage from a use falling within Class B1(a) (offices) in the Use Classes Order to a use falling within Class C3 (dwellinghouses).

In this post as first published, I speculated as to the physical extent of this PD right where an office use exists only in part of a building. I am grateful to Chris Anscombe for reminding me that Article 1(2) of the GPDO interprets “building” to include any structure or erection and (except in some other parts of the Second Schedule) it includes any part of a building, as defined in that article. Thus it is clear that the new PD right to change the use from office to residential does apply to a planning unit forming only part of the building, where that unit has been used as an office within Use Class B1(a) before 30 May . It could apply to each of several offices in a building if each of them is a separate planning unit.

The next question relates to an office building which, whilst it is a single planning unit as it stands, could reasonably be converted into a number of separate dwellings. Does the amendment order allow such a conversion? The order permits a change of use “to a use falling within Class C3”. The reference is to ‘a use’ in the singular, which suggests that the conversion of an office building to flats would not come within the scope of this provision. But this is no more than a tentative view on my part, and I would be interested to hear other views on this point.

The right to make this change of use is in any event hedged about by a number of limitations and conditions which need to be clearly understood by anyone contemplating such a conversion, and the change of use can only be made within the next three years.

First of all, a number of specified areas within 17 different local planning authorities have been exempted from these provisions. This in itself is controversial, and a legal challenge from one or more of the authorities which sought but did not obtain exemption cannot be ruled out. Similarly, in view of the procedure adopted in relation to these exemptions, I believe there may also be scope for judicial review applications in relation to that process itself. However, for the time being we must proceed on the basis that the Order will take effect as published. The list of exempted areas will be found in Part 4 of Schedule 1 to the GPDO, referred to in the order as “Article 1(6A) land”. Note that (in contrast with the position relating to larger domestic extensions) there is no exclusion in this case of a change of use on Article 1(5) land (land in a National Park, an Area of Outstanding Natural Beauty, a Conservation Area, the Broads or a World Heritage Site) or in an SSSI.

Assuming that the office building in question is not within one of the exempted areas, it will still only qualify for change of use to residential if it is actually in use for a purpose falling within Use Class B1(a) (offices) immediately before 30 May 2013 or (if the building has not been in use immediately before that date) it was used for a purpose falling within Use Class B1(a) when it was last in use.

This means that if a building has never actually been in use for a purpose falling within Use Class B1(a) (offices) at any time before 30 May 2013 or if, having previously been in use for a purpose falling within that category, it has more recently been used for any other purpose, including a use falling within any other category in Use Class B1, it will not qualify for change of use to residential. This will be bad news for any developer who has built an office building but has found it impossible to let or who, despairing of letting it for an office use, has allowed it to be used, even if only temporarily, for some other use.

Bearing in mind the judgment in Kwik Save Discount Group Ltd v. Secretary of State for Wales [1981] J.P.L. 198, 201-202, if an office use commences only shortly before 30 May 2013, it may be advisable that it should continue for a reasonable time after that date before the developer seeks to make a change of use under these provisions. Kwik Save does not spell out how long such a use would need to continue before a change of use could be contemplated, but I recall an inspector’s decision (admittedly in a slightly different context) that it should be ‘a year and a day’, although that opinion does not appear to have been supported by any reasoning or judicial authority.

There are three other exclusions from this new right to change the use of an office building to residential. The right does not apply if the building is in a ‘a safety hazard area’ [an area notified to the LPA by the Health and Safety Executive for the purposes of paragraph (e) of the Table in Schedule 5 to the Development Management Procedure Order (or under the old General Development Procedure Order)], or if it is in a military explosives storage area [an area, including an aerodrome, depot or port, within which the storage of military explosives has been licensed by the Secretary of State for Defence, and identified on a safeguarding map provided to the LPA for the purposes of a direction made by the Secretary of State in exercise of powers conferred by article 25(1) of the DMPO (or under the old GDPO)], nor does it apply if the building is a listed building or a scheduled monument.

The change of use cannot take place until the completion of a prior notification procedure. The developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to - (a) transport and highways impacts of the development, (b) contamination risks on the site and (c) flooding risks on the site.

There are detailed rules relating to this procedure, which are set out in paragraph N. The application must be accompanied by a written description of the proposed development, a plan indicating the site and showing the proposed development [again, as with domestic extensions, this is ‘a plan’ in the singular, so it does not include elevations], the developer’s contact address or email address and, in this case, any fee required to be paid. But what fee? It is not clear how the Application Fees Regulations would apply in this case, unless those regulations are to be amended to include this type of application.

Where the application relates to prior approval as to transport and highways impacts of the development, where in the opinion of the local planning authority the development is likely to result in a material increase or a material change in the character of traffic in the vicinity of the site, the council must consult the relevant statutory consultees (highway authority, rail operators, etc.), and the same applies where the application relates to prior approval as to the flooding risks on the site (in this case the Environment Agency). In addition, the LPA must display a site notice for at least 21 days, and must serve a notice on any adjoining owner or occupier. However, there is no requirement in this case for the developer to supply the LPA with the addresses of any adjoining premises.

The LPA may require the developer to submit such information regarding the impacts and risks referred to above as they may reasonably require in order to determine the application, which may include assessments of impacts or risks and statements setting out how impacts or risks are to be mitigated. However, there is no power for the LPA to request additional information outside this fairly narrow subject matter, even if there are objections from neighbouring owners or occupiers; a request for additional information cannot extend beyond material relating to transport and highways impacts, contamination risks and flooding risks.

When determining the application, the LPA must take into account any representations made to them as a result of any consultation; they must have regard to the National Planning Policy Framework as if the application were a planning application and (in relation to the contamination risks on the site) they must determine whether, as a result of the proposed change of use, taking into account any proposed mitigation, the site will be contaminated land (as described in Part 2A of the Environmental Protection Act 1990), and in doing so they must have regard to the Contaminated Land Statutory Guidance issued by DEFRA in April 2012 (and if they determine that the site will be contaminated land, they must refuse to give prior approval.)

There is no specific requirement here to have regard to the development plan, so that on the face of it section 38(6) of the 2004 Act would not appear to be engaged, but the stipulation that the LPA must “have regard to the NPPF as if the application were a planning application” might be thought to bring this in by the back door. Paragraph 196 of the NPPF notes that planning law requires that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise, but this paragraph does not in itself bring section 38(6) into play. The intention of this paragraph in the NPPF is simply to stress that the Framework is a material consideration in planning decisions. Paragraph 197 also mentions that in assessing and determining development proposals, local planning authorities should apply the presumption in favour of sustainable development.

There is also some ambiguity in the requirement to “take into account any representations made to them as a result of any consultation”, bearing in mind that this consultation includes the notification of neighbours. If a neighbour objection is received that is based on some issue other than transport and highways impacts, contamination risks or flooding risks, should those representations be taken into account or not? One is certainly left with the impression that these prior notification applications for change of use from office to residential are likely to be dealt with as if they were planning applications, which could effectively frustrate the government’s purported intentions in promulgating this change to the GPDO.

Two other points, which are not referred to in the amendment order, must be borne in mind. First, a change of use of this kind must comply with the Building Regulations. Secondly, whilst section 55(2)(a) of the 1990 Act exempts from the definition of development the carrying out of works for the maintenance, improvement or other alteration of any building which affect only the interior of the building, or which do not materially affect the external appearance of the building, any works that do materially affect the external appearance of the building will be development (subject to the rule in Burroughs Day). The amendment order does not authorise any external works in connection with the permitted change of use, and so planning permission will be required for any such external alterations.

The conversion work cannot begin until the applicant receives from the LPA a written notice of their determination that prior approval is not required, or giving their prior approval. However, there is another long-stop date, in this case 56 days following the date on which the application was received by the LPA. If that period expires without the LPA notifying the applicant as to whether prior approval is given or refused, then the applicant is entitled to go ahead with the conversion. Like the 42-day time limit in respect of larger domestic extensions, this will put considerable pressure on LPAs to get through the process without delay, lest they run out of time.

As in the case of larger domestic extensions, where prior approval of the change of use is required, the development must be carried out in accordance with the details approved by the LPA or, where prior approval was not required or where the LPA did not notify the developer of its decision within the 56-day time limit, in accordance with the information provided in the original notification to the LPA. This, however, is subject to the proviso “unless the local planning authority and the developer agree otherwise in writing”, which (as I observed before) seems to give significant flexibility for agreed amendments without the need for any further formality other than some form of agreement in correspondence (even by email) between the developer and the LPA.

Finally, any change of use to residential use within Use Class C3 permitted under this provision must be begun before 30 May 2016, but there is no requirement to notify the LPA of the completion of the development in this case.

I am afraid we still haven’t finished with the GPDO amendments. There are other changes to Part 3 of the Second Schedule to the GPDO, and also to Part 4. These will have to be the subject of a future post.

© MARTIN H GOODALL

Larger domestic extensions – some further thoughts

Following my latest post, Anthony Gilbert wrote to me to query the position regarding the plan that must be submitted under paragraph A(4)(2)(b). How is the word "plan" (in the singular) to be interpreted in this context? How detailed does it need to be, and to what scale should it be drawn? Would a sketch plan suffice, or would it have to be accurately drawn to scale by a draughtsman or with CAD?

The issue as to the scale and accuracy of the plan could be a bone of contention in some cases, but I suggest that LPAs will in practice have very little room for manoeuvre. Paragraph A.4(2)(b) requires that the developer must provide “a plan indicating the site and showing the proposed development”. I do not consider that the LPA could demand that the plan be drawn to any particular scale or even that it should be on an OS base, so long as it indicates the site with sufficient clarity to enable it to be correctly identified and shows where the proposed extension is to be located. Nor can the LPA demand more than one copy of this information; if they want more copies they will have to copy them for themselves.

The actual dimensions of the proposed extension are required to be stated in writing [paragraph A.4(2)(a)], so precise accuracy of the delineation of the extension on the plan may not be critical, although there could possibly be an issue as to the distance of the extension from a neighbour’s boundary. The provisions of paragraph A.4(9) should also be borne in mind. This requires that the development must be carried out in accordance with the details approved by the LPA (where there has been a neighbour objection) or in accordance with the information provided under paragraph A.4(2) (where there has been no objection). So the plan supplied under paragraph A.4(2) will have to be sufficiently accurate to enable compliance with the requirements of paragraph A.4(9) to be verified in the case of any subsequent dispute.

Section 62 of the 1990 Act and the corresponding provisions of the DMPO will not apply to the prior notification made under the GPDO, and so there can be no question of the LPA refusing to ‘register’ it or seeking to impose any conditions or requirements for its ‘validation’. Only if the material supplied by the developer really is insufficient to comply with the fairly simple requirements of the condition set out in paragraph A.4(2) could this be treated as not being prior notification for the purposes of these provisions. It would be somewhat risky for an LPA to take such a view, as it might well turn out that the information supplied did comply with paragraph A.4(2), in which case the developer would be entitled to proceed with the extension on the expiry of the 42-day period.

It should also be noted that the LPA can only request additional information under paragraph A.4(6) in the event of a neighbour objection being made. If no objection is received, no consideration of the impact on the amenity of adjoining premises is needed, and so the possibility of the LPA requiring further information cannot arise. In those circumstances, the developer will be entitled to proceed on the basis of the information originally supplied, without requiring the prior approval of the LPA.

It did occur to me to wonder what the position would be if the LPA fails for any reason to notify the neighbours as required by paragraph A.4(3). I rapidly came to the conclusion that this is solely the LPA’s problem. If the developer has complied with the rules, they will be entitled to proceed with their extension after 42 days in the absence of any neighbour objection (even if this is the result of some administrative failure on the part of the LPA). The only remedy for a neighbour in that event would be a complaint of maladministration. The development itself could not be prevented in those circumstances.

It should be remembered that the philosophy behind these new rules is that this whole regulatory procedure should be ‘light touch’. I would expect LPAs to get short shrift from the Planning Inspectorate and from the courts if they are heavy-handed in the way they deal with these procedures.

I have received a second query, from Val Jacobi . She asks how anyone can now apply (under section 192) for a certificate of lawfulness for a rear extension using the new limits, because the lawfulness of the development will depend on compliance with the prior notification procedure. I entirely agree, and it seems to me that a CLOPUD cannot be granted in these circumstances.

On the other hand, if the prior notification procedure has been completed, and either there has been no objection or the proposal has been approved following a neighbour objection, it will clearly be lawful for the developer (or a successor in title) to proceed with the extension at any time in the future, provided it is completed no later than 30 May 2016. It is difficult to envisage circumstances in which an owner would subsequently think it necessary to obtain a lawful development certificate for such an extension (unless perhaps they were a later purchaser who is unsure that there has been compliance with the conditions in paragraph A.4), but there would seem to be nothing to prevent a certificate being granted if the prior notification procedure has been correctly followed.

Val also asks what the position would be if a neighbour at the time of the original proposal moves away before the work commences. The new neighbour might not like it, but if the prior notification procedure has been completed, there will be nothing they can do about it, and the extension can go ahead. There will certainly be no legal requirement for the LPA to consult the new neighbour unless they move in early enough to enable the LPA to give them 21 days’ notice within the original 42-day period and still issue a decision within that period. However, if the LPA has already given notice to the neighbour who was there when the developer’s notification was received, I don’t think the LPA would be under any obligation to send out a second notice to a new neighbour moving in a few days or weeks later. On the other hand, if there is time to do so, the LPA might take this step if they think it appropriate.

© MARTIN H GOODALL

Larger domestic extensions – the new rules

De-CLoG laid the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2013 (SI 2013 No. 1101) before parliament last Thursday (9 May) and it comes into effect on 30 May.

Article 4 of the amendment order changes the provisions of Part 1, Class A of the Second Schedule to the GPDO (the enlargement, improvement or other alteration of a dwellinghouse) by adding a further limitation after paragraph A.1(e). This new paragraph A.1(ea) provides that until 30 May 2016, for a dwellinghouse not on Article 1(5) land (land in a National Park, an Area of Outstanding Natural Beauty, a Conservation Area, the Broads or a World Heritage Site) nor on an SSSI, the enlarged part of the dwellinghouse (which must be single-storey only) can extend up to 8 metres beyond the rear wall of the original dwellinghouse in the case of a detached house, and up to 6 metres beyond the rear wall of the original dwellinghouse in the case of any other house. In either case, the height of the extension must not exceed 4 metres.

There are then some additional conditions, which are inserted after paragraph A.3, which apply only to the enlarged extensions allowed under paragraph A.1(ea), but not to extensions within the original limits set out in paragraph A.1(e). These requirements are set out in a new condition A.4. They relate to the prior notification procedure announced a few weeks ago.

Before commencing the development, the developer must provide the LPA with a written description of the proposed development, including how far the enlarged part of the dwellinghouse will extend beyond the rear wall of the original dwellinghouse, the maximum height of this extension and its height at the eaves. The developer must also supply a plan indicating the site and showing the proposed development, but there is no requirement for drawings showing the elevations – only a plan. The LPA must also be supplied with the addresses of any adjoining premises. No fee is required.

“Adjoining premises” is not defined in the amendment order, although the term is defined in section 61(2B) of the 1990 Act (recently inserted by the Growth and Infrastructure Act 2013) as including “any land adjoining the dwelling house concerned, or the boundary of its curtilage”. It is not entirely clear whether that definition can be taken as applying to the GPDO amendment, although it was no doubt intended that it should do so.

As I pointed out in a previous post, this could mean any land, although it makes no sense to bother about an adjoining open site (such as farmland). In fact the use of the word “premises” would (if one takes the dictionary definition) appear to imply the presence of a building, and so I would suggest that in practice it will suffice if the LPA is notified of adjoining premises that comprise or include a building.

What is clear from the drafting of the amendment order is that the onus is on the developer to identify the adjoining premises, and it does not appear that the LPA is under any obligation to go behind this to identify any other premises that may in fact be ‘adjoining’. This could conceivably become a subject for dispute in some cases.

The LPA is then required to give notice of the proposed development to the neighbours, allowing them not less than 21 days from the date of this notice (not from the date when the LPA was notified of the proposed extension) by which any representations must be received by the authority. The 21-day period is a minimum, and the LPA could specify a longer period, although if they do so they could find themselves running out of time, as explained below.

Where any owner or occupier of any adjoining premises objects to the proposed extension, this triggers a requirement for the approval of the LPA as to the impact of the proposed development on the amenity of any adjoining premises (and not just those whose owner or occupier has objected) [ - paragraphs A.4(5) and A.4(7)(b)].

The LPA may require the developer to submit such further information regarding the proposed development as the LPA may reasonably require in order to consider the impact of the proposed development on the amenity of any adjoining premises [ - paragraph A.4(6)]. This might, for example, include drawings of the proposed elevations of the structure. Although it is not spelt out in clear terms, the LPA clearly cannot require such further information in the absence of any objection having been received within the specified period.

It seems clear from paragraph A.4(7) that whilst the LPA must consider any representations made by neighbours, and the amenity of any adjoining premises, there is no requirement to have regard to the Development Plan, and so section 38(6) of the 2004 Act will not apply. It is a moot point as to whether there could be any other material considerations which should be taken into account under the Wednesbury principles, but it would seem that in practice the issues to be taken into account are closely circumscribed.

If no objections are received within the period specified by the LPA in their neighbour notification, they should notify the developer that their prior approval is not required [ - paragraph A.4(8)(a)]. However, they are not actually required to do so. But there is a ‘long-stop’ date, that allows the developer to go ahead with the extension 42 days after originally giving notice to the LPA if they have failed to notify the developer within that time as to whether their prior approval of the extension is given or refused [ - paragraph A.4(8)(c)]. In a case where the LPA’s prior approval is given, the development can proceed immediately upon receipt of that notice [ - paragraph A.4(8)(b)].

Paragraph A.4(8)(c) sets a trap for unwary planning officers. The time limit of 42 days does not operate in the same way as other prior notification time limits in the GPDO. What the LPA is required to do within that 42-day period is not simply to notify the developer that their prior approval will be required; they must actually notify the developer within that time limit as to whether prior approval is given or refused. This means that, whilst on paper there is no specified time after the LPA receives the initial notification from the developer within which they must serve notice on the neighbours, and whilst they might also choose to give more than 21 days for the receipt of representations from the neighbours, any such delays will eat into the period within which the LPA must come to a decision to give or refuse approval for the extension and notify the developer of that decision. The 42 days is an absolute time limit that runs from the date on which the LPA originally received notice of the proposed extension. It cannot be extended, and even a requirement for additional information cannot extend the period within which the matter must be determined. There certainly won’t be time to put these proposed extensions to committee in most cases.

This presents practical difficulties for LPAs and developers alike. The need to reach a decision and notify it to the developer within 42 days may tempt some LPAs to issue a refusal almost automatically if there is an objection. Certainly, if the LPA does not feel it has sufficient details to be able to determine the matter in the face of a neighbour objection, there is unlikely to be time realistically to request further information and consider it within the time limit. A refusal in such circumstances would appear to be almost inevitable.

The only way to avoid this might be for the developer to give more information at the outset than the rules actually require – for example a complete set of drawings (not just a plan), and maybe a photo-montage or other illustrative material to demonstrate how the extension will relate to any neighbouring premises. But clearly the most effective way of ensuring a smooth ride for your proposed extension is to speak to your neighbours first, and give them sufficient details of what you intend, so as to reassure them that it will not adversely affect their amenity.

Where prior approval of the extension is not refused, the development must be carried out in accordance with the details approved by the LPA or, where prior approval was not required (because there were no objections or because the LPA did not notify the developer of its decision within the 42-day time limit), in accordance with the information provided in the original notification to the LPA, [ - paragraph A.4(9)]. This, however, is subject to the proviso “unless the local planning authority and the developer agree otherwise in writing”, which seems to give significant flexibility for agreed amendments without the need for any further formality other than some form of agreement in writing between the developer and the LPA.

If a larger domestic extension is built under this provision, the development must be completed on or before 30th May 2016 [ - paragraph A.4(10)]. This is the first time that the planning legislation has provided that a development must be completed by a given date, as distinct from development being commenced within a time limit. Unless there is any subsequent amendment of this provision, then this “Cinderella’s night at the ball” clause means that the uncompleted extension will cease to be permitted development and will then have to be the subject of an application for retrospective planning permission, failing which it could in theory be the subject of enforcement action requiring its removal.

Finally, paragraph A.4(11) provides that the developer must notify the local planning authority of the completion of the development as soon as reasonably practicable after completion. This notification must be in writing and must include the name of the developer, the address or location of the development, and the date of completion.

As I observed in an earlier post, the practical effect of these provisions may be to stop larger domestic extensions dead in their tracks. However, following the procedure laid down, even if it leads to a refusal, may still be cheaper and easier than making a full planning application for such an extension, because any appeal against that refusal (which would be dealt with as a fast-track householder appeal) would have to be determined on the very limited criteria laid down in the amended rules. There would be no opportunity for further objections or amplification of the original objections, and this might be a practical way forward in such cases, with the added possibility of obtaining an award of costs against the LPA.

The amendment order makes other important changes to the GPDO, and I will look at these in a future post.

© MARTIN H GOODALL

Outsourcing services – the Barnet case

Readers may be aware of the recent High Court decision in R (Nash) v. Barnet LBC [2013] EWHC 1067 (Admin), in which a challenge to the outsourcing of various functions and services, including a number of the council’s regulatory functions (such as development management) was dismissed.

The claimant is a resident of the borough who depends on the social services provided by the council, and the case turned largely on the alleged inadequacy of the public consultation prior to the outsourcing decision being taken, the council’s duty to ensure equality in the provision of its services and an alleged breach of fiduciary duty.

Bearing in mind the area of operations with which the claimant was concerned, it is entirely understandable that these should have been the issues canvassed before the court. However, it seems to me that there are some serious issues relating to the outsourcing of the council’s regulatory functions, such as development management, that have not been addressed.

I have previously written on this subject in a post entitled “Privatising Development Control” on Thursday, 8 March 2012. My concern now, as then, is that a local authority has no right to delegate decision-making in relation to any of its regulatory functions to anyone outside the authority. It is the council that has the statutory duty to make the decision, and so an LPA must be very careful not to go too far in delegating planning casework to an outside contractor, lest they infringe the very well known rule - Delegatus non potest delegare.

I drew attention in that previous post to a successful High Court challenge in Dorset some years ago to the determination of a homelessness claim, where the council had farmed out the processing of homelessness casework to a housing association, reserving to themselves only the final decision as to whether the applicants were homeless within the statutory definition. The way in which the processing of the casework had been delegated meant that the officers of the housing association were responsible for all the relevant investigations and they then compiled a report which included a recommendation to the council as to whether the applicants should or should not be found to be unintentionally homeless, and therefore entitled to re-housing by the authority. The High Court quashed the determination in question on the basis that the Council had delegated so much of the process to the housing association as to be acting as no more than a rubber stamp for a decision which had already effectively been made by the officers of the housing association.

I do not know the details of the agreement Barnet LBC has reached with Crapita (as Private Eye always calls them), and it seems that the council successfully kept the agreement under wraps in the recent High Court proceedings on the grounds of commercial confidentiality, but the extent to which the development management process has been delegated to this contractor in Barnet may well come in for scrutiny, and if the extent of that delegation goes too far (as the homelessness investigations did in the Dorset case), we may yet see a successful legal challenge to Barnet’s outsourcing scheme.

© MARTIN H GOODALL

The domestic extensions fiasco

Readers who have been following this blog for the past few years may recall that Stephen Ibbitson has contributed a couple of guest posts during that time on the subject of Permitted Development, a topic of which he has made a particular study.

My piece the other day on the newly proposed permitted development rights for larger domestic extensions prompted Stephen to contribute the following comment, which I am very pleased to be able to publish as a guest post.

[I should just mention that all the Statutory Instruments to which Stephen refers are various versions of the General Development Order and the General Permitted Development Order that have appeared over the years, starting in 1948. In particular, SI 1995 No 418 was the original version of the current GPDO, and SI 2008 No 2362 was the notorious amending Order which replaced Part 1 of the Second Schedule with effect from 1 October 2008. The history of this area of secondary legislation is indeed a sorry tale.]

STEPHEN IBBITSON writes:

Great stuff Martin. I'd been hoping your next post would be on this subject ever since this fiasco-in-waiting was announced.

You've covered the salient points arising from these proposals, but I'd like to flag up a more basic matter concerning PD and neighbours generally which I think illustrates the heart of the problem. Facing up to the nub of this requires the asking of two questions which are actually one and the same. But before I pose those questions, it is perhaps worth reminding ourselves what PD has been about all these years. So here goes.

From Ministry of Town and Country Planning Circular 87, 1950 para. 4, introducing the purpose of SI 1950 No 728 (amending the first householder GDO, SI 1948 No 958 which created PD rights for outbuildings only, not extensions to dwellinghouses):

"...to remove from the need to obtain express planning permission, a number of minor applications which have so far occupied an amount of time and manpower out of all proportion to their importance to planning."

W.A.Leach, commenting on the technical and detailed nature of the 1950 Order, observed:

"It is evident as soon as Article 2 of the Order is reached that the parliamentary draftsmen are losing their grip."

Well, perhaps not as much as their successors, some might think, and I would agree. SI 1950 No 728 was subject to all sorts of minor amendments over the years until SI 1988 No 1813 came about as a result of 'consolidation' that year. This suggests that the draftsmen were not that wide of the mark. Had they been so, any amendments in the intervening four decades would have been somewhat more than merely 'minor'.

Development Orders seek to strike a balance between reasonable degrees of freedom for householders (but not as far as an 'unrestrained whim' !) to enlarge and alter their homes without applying for permission on the one hand, and the various impacts such development might have on neighbours and public views on the other. Fair enough; that's much the same as LPAs do in determining a planning application, as we all know.

But any Development Order, just like any outcome from submitting a planning application, is inevitably imperfect; there will always be disappointed parties in any contentious proposal, minor or otherwise, whether the development is under deemed or express consent. Anyone who has sat through a planning committee will have seen this at first hand. (Incidentally, this point exposes the fallacy promulgated by some folk in the LPA/planning sphere that all you've got to do to eliminate neighbour difficulties, and the tiresome business of ward councillors having to field letters of complaint, is to abolish PD rights entirely and run everything through the full planning permission route. Nothing to do with fee income and massive departmental expansion or empire building, then?)

So to the questions -

First question to a (any) householder: "Would you like more control over/say in/veto on what your neighbour can do to his house/garden?"

Second question to the same householder: "Would you like your neighbour to have more control over/say in/ veto on what you can do to your house/garden?"

I submit that most people's instinctive, spontaneous response to the first question will be "Yes" whilst the response to the second will be "No". Yet, as but a moment's thought reveals, each question is exactly the same! If you answer "Yes" to the first, you are automatically saying "Yes" to the second.

Perhaps those questions should be asked of the 'rebel' backbenchers (26 of them, was it?) who forced ministers into this dog's dinner of a measure. Perhaps they think you really can answer ‘Yes’ to one and ‘No’ to the other.

The root of the government's problem in trying to expand PD to promote building activity is that ‘Ford Edsel’ of Development Orders, SI 2008 No 2362. Six or more years and three separate 'consultations' in the making, this supposedly liberalising amendment was anything but that. Apart from other flaws (mostly in interpretation of novel terms---those consultants again) the 3 metre and 4 metre rear extension depth limits (respectively for terrace/semi and detached) were always going to be too restrictive. For example, a gross depth of 3 metres yields a net depth of 2.7m (9ft) which for many people just ain't enough - not enough space in its own right and not enough space for the money; in most instances an extra 1 metre would barely cost any more.

Ironically, the limits of 3 metres and 4 metres were introduced by De-CLoG at the very last minute, so to speak, from the originally formulated limits of 4 metres and 5 metres! It has been suggested that this was in response to shrill cries of ‘Foul!’ and dire warnings from LPA interests that allowing such large increases would be disastrous. (Nothing to do with the lower limits generating more applications for express permission, of course!). Never mind that SI 1995 No 418, in allowing a volumetric increase of 70 cubic metres (or 50 for terrace and Article 1(5) land) enabled a householder to build a 2.5 metre high x 3.6 metre wide and 7.7 metre deep extension. The claim was that if the 2008 amendment (as originally proposed) were to allow a full 4 metres of rear extension depth then the world would come to an end!

Said otherwise, had De-CLoG and their consultants left SI 1995 No 418 alone, then the government would not now have had to poke a stick into the hornets’ nest by seeking to expand the limits at much political cost. SI 2008 No 2362 was poorly understood by both De-CLoG and ministers when introduced (as evidenced by the lack of an explanatory Circular; they couldn't explain the new regulations to others because they didn't understand them themselves!) and the history of PD (nearly 60 years of refinement and evolution) was even less understood by their consultants, with their arrogant assumption that all the PD regime required to sort out its (alleged) deficiencies was a dose of their expertise. As it is, they've found out the hard way (but presumably been paid, nonetheless) exactly why decades of their predecessors used volumetric rather than dimensional limits.

Incidentally, if SI 2008 No 2362 was such a great creation, how is it that the Welsh Assembly Government has not implemented it nearly five years on?

The government rebels who foisted the compromise on Uncle Eric seem to want to live in a world where ‘Yes’ and ‘No’ mean the same thing, like wishing that people can be half-pregnant. Wake up, Parliament, I say, and have the courage of your convictions: either a development is PD or it’s not. Either you are granting a general planning permission or you're not. Time to make up your minds.

Lastly, as Martin observes, why the Primary Legislation route instead of a just a new Statutory Instrument amending the GPDO? Baffling.”

© STEPHEN IBBITSON

Domestic extensions – a messy U-turn

One of the problems of making policy on the hoof, as this government should long since have discovered, is that it frequently results in some embarrassing reversals and even squealing hand-brake turns when some bright new idea turns out to be unexpectedly unpopular or downright impracticable.

The proposal, announced in a great fanfare last Autumn, to allow much larger domestic extensions as permitted development is the latest example. It would involve too much loss of face for the government simply to drop the idea, and so we now have an unwieldy proposal for a prior notification procedure for such extensions, the details of which are still far from clear.

Following the latest government amendments to the Growth and Infrastructure Bill, Section 61 of the Town and Country Planning Act 1990 will be amended by adding a new sub-clause (2B), which will provide that, without prejudice to the generality of subsection (1), a development order may [not ‘must’] include provision for ensuring –

(a) that, before a person in reliance on planning permission granted by the order carries out development of land in England that is a dwelling house or is within the curtilage of a dwelling house -

(i) a written description, and a plan*, of the proposed development are given to the local planning authority [* but not elevations apparently?],

(ii) notice of the proposed development, and of the period during which representations about it may be made to the local planning authority, is served by the local planning authority on the owner or occupier of any adjoining premises, and

(iii) that period has ended, and

(b) that, where within that period an owner or occupier of any adjoining premises objects to the proposed development, it may be carried out in reliance on the permission only if the local planning authority consider that it would not have an unacceptable impact on the amenity of adjoining premises.

[Note that the actual length of the consultation period is not actually specified here.]

"Adjoining premises" in this sub-section includes any land adjoining the dwelling house concerned, or the boundary of its curtilage. As drafted, this means any land, although it makes no sense to bother about an adjoining open site (such as farmland), and it would have been more sensible to restrict the requirement to any adjoining dwellinghouse and its curtilage.

The government intends that this should be “a light-touch neighbourhood consultation scheme”, but in practice it could well turn out to be a bureaucratic nightmare. It was obvious from what Baroness Hanham told the House of Lords on Monday that ministers are making this up as they go along, and have not even begun to think through the details. The current version of what the government intends is that a homeowner wishing to build an extension will notify the local planning authority and provide plans and a written description of the proposal. The local authority will then notify the adjoining neighbours (the owners or occupiers of properties that share a boundary, including those at the rear).

The details, we are told will be set out in an amendment to the GPDO, but the intention is that neighbours will have 21 days in which to make an objection. (21 days from when precisely?) If no neighbours object, the authority will notify the home owner that they are able to proceed with the development. If any neighbour raises an objection, the authority will then consider the case on the single issue of whether the impact of the proposed extension on the amenity of neighbours is acceptable. This suggests that other considerations (such as section 38(6) of the 2004 Act) are not intended to apply – an interesting concept. Baroness Hanham announced airily that it would be up to individual councils to decide how they handle the consideration of these proposals, so that the decision may either be delegated to officers or made by a planning committee. Contrary to some suggestions, ward councillors will definitely not be the arbiters.

If approval is not given, the home owner will be able to appeal against a refusal or may wish to submit a full planning application. The home owner will be able to appeal against a refusal of consent. There will, of course, be no third party right of appeal for objectors if the extension is approved by the LPA. It seems that the government is not proposing to charge an application fee, but that may very well change. Objections to this on grounds of cost are already being made by local authority representatives.

Lady Hanham expressed the pious hope that local authorities will not resort to using Article 4 directions to remove the new permitted development rights. The Secretary of State could in fact thwart any such attempts (as previously discussed in this blog), although it might be politically embarrassing to have to do so.

There remain numerous uncertainties, which will only be resolved when we see the actual amendments that are proposed to Part 1, Class A of the Second Schedule to the GPDO. It is possible that the prior notification procedure might be applied not only to the larger extensions that are now intended to become permitted development, but perhaps to all extensions under Part 1, Class A.

As to appeals and enforcement, I don’t suppose that civil servants at De-CLoG have even had time to start thinking about this yet. It must be very difficult for them when they have a government that seems to make up policy as they go along, without any prior thought being given to the practicalities of what they are proposing – hence the numerous U-turns and back-tracking we have seen over the last three years.

What I find puzzling is why the government thought it necessary to legislate on this in the Growth and Infrastructure Bill in the first place. The Secretary of State already had full powers to make and amend development orders, and so he could have amended the GPDO without need of further primary legislation, just as his predecessor did when Part 1 of the Second Schedule was re-written in 2008.

And all this for something that is only intended to last for three years! I think the betting must be on its being made permanent, unless it proves to be such a shambles that the next government, which will be in power by the time the three-year period comes to an end, decides that the best thing would be to pull the plug on the whole mess.

What a way to run a planning system!

© MARTIN H GOODALL

Permitted Development within the Curtilage of a Listed Building or in a Conservation Area

Here are a couple of quiz questions for the planning professionals among our readers:

Question 1 - Hands up if you think that, in England, the enlargement, improvement or other alteration of a dwellinghouse which would consist of or include the erection of a building within the curtilage of a listed building is not permitted development (under Class 1, Part A).

Question 2 - Hands up if you think that, in England, permitted development under Part 1, Class E is restricted in size to no more than 10 cu m if the property is in a Conservation Area.

I am willing to bet that there are quite a few people who thought that the answer to both these questions was ‘Yes’. In fact even the editors of the two main practitioners’ text books – the Encyclopedia of Planning Law and Practice and Development Control Practice seem to be under this impression, judging from their respective commentaries on this legislation.

If the property in question is in Wales, then this is certainly the case, at least for the foreseeable future, because the pre-October 2008 version of Part 1 of the Second Schedule to the GPDO, which continues to apply in the principality, said precisely this. The references in the pre-October 2008 version of the Order are paragraphs A.1(g) and E.1(f) respectively.

However, it seems to have escaped the attention of nearly everyone that the revised version of Part 1 that was substituted, in England only, by the Town and Country Planning (General Permitted Development) (Amendment) (No.2) (England) Order 2008 (SI 2008/2362), with effect from October 1, 2008 changed these provisions.

What had been paragraph A.1(g), precluding the enlargement, improvement or other alteration of a dwellinghouse which would consist of or include the erection of a building within the curtilage of a listed building, was omitted from the post-October 2008 version of Part 1. It was presumably felt that such an enlargement, improvement or other alteration of the listed building would be likely to affect its character as such, and so any necessary control over such an extension would be adequately provided by the requirement for Listed Building Consent. Thus, in England, since 1 October 2008, the enlargement, improvement or other alteration of a dwellinghouse is Permitted Development under Part 1, Class A, even if the dwellinghouse in question is a Listed Building. In most cases, of course, it will require LBC, but (until LBC and planning permission are merged into a single consent) planning permission is not required as such.

Part 1, Class E comprises the provision within the curtilage of the dwellinghouse of any building or enclosure, swimming or other pool, provided that the building or structure in question is "required for a purpose incidental to the enjoyment of the dwellinghouse as such". This permitted development right extends also to a container used for domestic heating purposes for the storage of oil or LPG (but does not include the stipulation that it should be required for a purpose incidental to the enjoyment of the dwellinghouse as such). However, development is not permitted by Class E if the building, enclosure, pool or container would be situated within the curtilage of a listed building.

As regards curtilage development under Class E which is not within the curtilage of a listed building, what had been paragraph E.1(f) in the pre-October 2008 version of Part 1, restricting the size of curtilage development to no more than 10 cu m in cubic content if the property was situated within “any Article 1(5) land” (i.e. land within a National Park, AONB, Conservation Area, the Broads or a World Heritage Site), was changed in the post-October 2008 version of Part 1 so that what is now paragraph E.2 no longer refers to “Article 1(5) land” as such, but lists only land within a World Heritage site, a National Park, an AONB, or the Broads, and therefore omits land within a Conservation Area. The restriction in the specified areas is also amended, so that the limit, which now relates to a cumulative total of 10 sq m in area, only applies to the aggregate of buildings, enclosures, pools and containers situated more than 20 metres from any wall of the dwellinghouse.

On the other hand, paragraph E.3 does refer to “Article 1(5) land”, so this paragraph does still include Conservation Areas. This precludes development under Class E if any part of the building, enclosure, pool or container would be situated on land between a wall forming a side elevation of the dwellinghouse and the boundary of the curtilage of the dwellinghouse.

Incidentally, I have deliberately omitted one of the categories listed above under the definition of “Article 1(5) land”. This is “an area specified by the Secretary of State and the Minister of Agriculture , Fisheries and Food for the purposes of section 41(3) of the Wildlife and Countryside Act 1981” (which relates to the enhancement and protection of the natural beauty and amenity of the countryside). David Brock and I were wondering a few weeks back whether any such areas had ever been specified under that section, so I fired off an email to both DEFRA and De-CLoG. DEFRA hadn’t a clue, and De-CLoG never replied! So your guess is as good as mine, although I strongly suspect that no such areas have ever been specified.

As noted above, the current version (in England) of Part 1, Class E does contain a prohibition, in the current paragraph E.1(f), of permitted development under this class if the building, enclosure, pool or container would be situated within the curtilage of a listed building.

Just to add to the apparent anomalies in the legislation, there has never been a prohibition in the case of a listed building (either under the pre-2008 or the post-2008 version of Part 1) on permitted development consisting of an addition or alteration to the roof of a dwellinghouse (under Part 1, Class B). So, subject to the limitations and conditions set out in Class B, roof extensions or alterations to such a house would be permitted development, even if it is a listed building. Again, this apparent omission is no doubt explained by the fact that such an extension or alteration to the roof of the listed building would amount to an alteration affecting its character as such, so that any necessary control over development of this kind would be adequately provided by the requirement for Listed Building Consent.

There is one important proviso in relation to permitted development under Part 1, Class B. Within "Article 1(5) land" (which includes a Conservation Area), additions or alterations to the roof are entirely precluded.

The train of thought that led to my writing this note was prompted by an enquiry that raised a slightly different point. This related to a situation, which I imagine is not uncommon, where a building has been listed, and land within its curtilage has then been sold off and one or more new houses have been built (with planning permission) on that former curtilage land.

So far as the extent of the listing is concerned, the relevant 'curtilage' for this purpose is the curtilage of the building that has been listed at the time of its original listing. However, as I have repeatedly pointed out, this would apply only to that part of the original garden land that was genuinely within the curtilage of the listed building at that time. As readers will have seen from the various notes on 'curtilage' in this blog, it cannot automatically be assumed that the whole of the former garden of the listed building was in fact within its curtilage. This will depend on the precise manner in which the land that now forms the separate property or properties was used at the time of the original listing of the neighbouring dwelling and its functional relationship with that dwelling at that time.

If the land now occupied by the new house or houses was within the curtilage of the listed building at the time of its original listing, then the listing extends to any object or structure within that original curtilage which had formed part of the land since before July 1, 1948. Listed building consent would be required for the demolition or alteration of any such object or structure (if that alteration would affect the character of the neighbouring dwelling as a listed building). However, the listing would not extend to any building, structure or other object on the land that was not there before July 1, 1948.

There is, however, some confusion as to the effect of land now separated from the listed building having been within the curtilage of that listed building at the time of listing, when one comes to consider the exercise of Permitted Development rights. For the reasons I have explained, in England at least, permitted development rights under Part 1, Classes A and B would not be precluded in respect of the new property or properties, even if they are still regarded as being within the curtilage of the listed building.

However, as noted above, development is not permitted by Class E if the building, enclosure, pool or container would be situated within the curtilage of a listed building. It is very much open to argument as to whether this prohibition applies only to the (reduced) curtilage of the listed building as it exists at the time when the permitted development is carried out, or whether it applies to the whole of the curtilage of the listed building at the time of its original listing. The latter would, in my view, throw up some obvious anomalies, but it would require some careful investigation and cogitation before one could be confident of coming up with an answer. It looks very much like a piece of litigation waiting to happen!

There is just one final point I should mention. Before getting stuck in to a detailed consideration of the provisions of the GPDO, it should not be forgotten that in these sort of cases there is quite often a condition attached to the planning permission for the erection of the new property or properties which will have removed permitted development rights under Part 1 in any event. If such a condition was imposed, the precise effect of the GPDO is entirely academic. Such conditions are not always justified and can sometimes be removed upon application to the local planning authority (or on appeal, if necessary, in the event of refusal – having regard to Circular 11/95). It is at that point that you would then have to consider whether the ‘curtilage’ issue might still prevent permitted development.

© MARTIN H GOODALL