Wednesday, 31 August 2011

Permitted development for outbuildings


‘Legalalien’ has kindly drawn my attention to a recent controversy which has been aired on ‘Mumsnet’ (not a website which it had ever occurred to me to visit, although I gather it is required reading for David Cameron and his policy advisers).

The argument is raging around some unwelcome development being carried on by someone’s neighbour in their back garden, and they were wondering what if anything they could do about it.

The subject of what development or other works a householder can and cannot carry out on their own property would take a book in itself and, if I can ever find the time to do so, I might well write just such a book. In the meantime, however, and looking at it from the point of view of the concerned neighbour, it may be helpful if I mention some of the constraints on householder developments.

I should stress that I am confining this note to free-standing buildings within the ‘curtilage’ which are permitted by Class E in Part 1 of the Second Schedule to the General Permitted Development Order (the ‘GPDO’), so these remarks do not apply to extensions and alterations of the house itself.

Perhaps the most important constraint on Permitted Development within this Class of Part 1 in the GPDO is the purpose for which the outbuilding is being erected. The wording of the Order is quite restrictive; it only permits the erection of such a building if it is “required for a purpose incidental to the enjoyment of the dwellinghouse as such”. The term ‘incidental’ as used here has been held to exclude purposes which are part of the primary residential use of the property, so a free-standing building to provide extra sleeping accommodation, extra living space, and/or a kitchen, etc. are not permitted by this part of the GPDO.

There is, however, one weakness in this rule. Provided the original purpose of the extra building was purely incidental to the enjoyment of the dwellinghouse, its later use as primary (but not separate) residential accommodation is not prevented. In order to demonstrate that the outbuilding had originally been erected for a strictly incidental purpose, I suggest that it would be necessary to show that it was actually used for that purpose when first built, and for some time thereafter. How long this period would have to be has never been settled, but I suggest that it would need to be for several months at the very least, if not a year or more.

So if a neighbour thinks that any building is being erected for a purpose which is not strictly incidental to the use of the house but is intended for some primary residential purpose, they should draw this to the attention of the local Council’s enforcement officer. Whether the Council will do anything about it is another matter, but certainly nothing will happen if they are not alerted to the situation.

The nature of the property or the area in which it is located may also affect the right to build within its ‘curtilage’. So, for example, if the house is a Listed Building, there is no right to develop within its curtilage at all. If the house is within a World Heritage Site, a National Park, an Area of Outstanding Natural Beauty, or the Broads (which are all formal planning designations), the development permitted by Class E is limited to no more than 10 square metres in area if it is situated more than 20 metres from any wall of the house. Furthermore, in these areas, and also within a Conservation Area, the development must not be built at the side of the house.

Apart from these specific restrictions, there is a general limit on such development, which prohibits building on more than 50% of the total area of the curtilage (excluding the ground area of the original house), and no part of the building must be positioned forward of the principal elevation of the original house. The building must not have more than one storey, and its height must not exceed 4 metres in the case of a building with a dual-pitched roof, or 2.5 metres if it is within 2 metres of the boundary of the property. In any other case, the height must not exceed 3 metres, and the height of the eaves of the building (in all cases) must not exceed 2.5 metres.

This note is not intended to be a comprehensive guide to the subject, but was written in order briefly to explain the limitations on the outbuildings which can be built as permitted development under Class E of Part 1.

Anyone can apply for planning permission for larger buildings on their property, but the usual development management criteria would apply in such a case, and neighbours may object if they consider that the proposed development will adversely affect them.

If ‘Legalalien’ would like to draw this note to the attention of the readers of ‘Mumsnet’ it may help in answering some of the queries which have arisen in the recent discussion on that website. Other readers of this blog might also find it helpful as a reminder of the limitations applying to the development permitted by Class E of Part 1 in the GPDO.

© MARTIN H GOODALL

100 comments:

  1. An anonymous correspondent has left a comment raising a question regarding permitted development of ancillary buildings in the curtilage of a building which is said to be a "non-designated heritage asset". It seems that a local planning authority is attempting to resist what on the face of it would appear to be permitted development on these grounds. The only means by which we can establish two-way communication is by email (as explained on a post in this blog a few weeks ago). So if the person concerned would like to email me at martin.goodall@keystonelaw.co.uk , I will see if I can give a quick answer to their question. I am bound to say that the notion of a "non-designated heritage asset" sounds like complete nonsense to me.

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  2. Martin

    I am a specialist builder / project manager dedicated to the very active market for garden studios and offices. Planning law is of great interest to my clients. Recently and presumably driven by economic conditions we have experienced a growth in enquiries about this subject. I find your contribution helpful and suspect this is a grey area which requires a "good dose of common sense".

    Richard

    www.aarco.co.uk


    Garden Studios Planning

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  3. In 2004 our neighbour built a 30ft x 30ft bungalow in the back garden under permitted development as the designated use was as a dog kennel/parrot house/games room. It has three rooms, a kitchen and a bathroom. At the time it was built neighbours alerted local planners to the building, but planners said its designated use meant planning permission was not required. The building is 4 metres high with a tiled pitched roof - a fully, properly brick built bungalow. Permission is now being sought by the owners to allow it to be used as a dwelling. It is less than 1 metre from our boundary and that of another neighbour. Where would you stand on this? Apart from the ability of emergency services to access the property at the side of a house a metre wide? Neighbours know the property has been used as accommodation since the day it was built and planners were alerted but did nothing.

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  4. I am sorry that the comment posted above has previously been overlooked. If the change of use is now the subject of a planning application, then the obvious answer is to write in to the Council to object to this change of use. It is essential that the Council should be made aware of any material change of use which may already have occurred, so that any such change of use does not become immune from enforcement and therefore lawful. Reading between the lines, I suspect that the current application may have been prompted by the Council’s having already blown the whistle on a perceived change of use, due to their having been alerted to this by neighbours, as described.

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  5. I question your logic. Where a development is based on GPDO Schedule E its use must be incidental. Its later use as primary (but not seperate) residential accommodation would be a material change of use for which planning permission would be required. The weakness in the rule is that, if the primary use is continuous for 4 years, it then becomes immune. It still does not become lawful. I think your advice is unhelpful to those of us commited to resolving the serious problem of "beds in sheds".

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  6. Nick Marbrow is right about the initial PD under Part 1 (Class E) – it must be ‘incidental’ (and that term has been very strictly interpreted in this context), but its later use as primary (but not separate) residential accommodation would NOT be a material change of use for which planning permission would be required, because of the operation of section 55(2)(f) of the 1990 Act.

    It is necessary to distinguish between the initial operational development (which must comply with the limitations and conditions in Part 1), and any later change of use. The planning unit is the residential property as a whole. The use of the planning unit both before and after the outbuilding is erected is wholly within Class C3. If the use of the outbuilding is later changed from incidental to primary or ancillary residential accommodation (e.g. as additional bedroom accommodation) the use of the planning unit is still wholly within Class C3. Therefore, by virtue of section 55(2)(f), there has been no change of use requiring planning permission. However, section 55(3)(a) prevents the use of the outbuilding as a separate private dwellinghouse without express planning permission.

    So ‘beds in sheds’ are not lawful under Part 1 (Class E) when the ‘shed’ is first built, but cannot be prevented subsequently. There is no clear judicial authority as to how long the purely incidental use would have to continue before it could be changed to a primary or ancillary (but not separate) residential use, but some analogous guidance might be derived from Kwik Save Discount Group v. SSE (1980).

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  7. There is one other point I should have made in response to Nick Marbrow. He refers to the 4-year rule. This would apply if, when the outbuilding was erected, it was not actually required for purposes incidental to the enjoyment of the dwellinghouse as such. The operational development would become immune from enforcement four years after it was substantially completed. (Continuous use would not be relevant.) Change of use of an outbuilding to use as a separate private dwellinghouse would also become immune from enforcement after four years, but in this case it would be necessary to show that the separate use had been continuous for 4 years.

    Nick Marbrow goes on to say that, whilst immune, “it still does not become lawful”. I am afraid this is wrong. As a result of the changes made by the 1991 Act (which came into effect in 1992), where development becomes immune from enforcement, it thereby also becomes lawful. (See section s.191(2)&(3) of the 1990 Act - Lawfulness is not dependent on the grant of a Lawful Development Certificate; that simply confirms the position.)

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    Replies
    1. This is the one of the few online post clarifying this, thanks !

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  8. Hi Martin, after reading your blog I am of the opinion that my existing brick built garden studio (10m sq.) having been used as a playroom, games room and office for 20 years can be converted to a bedroom (but not self contained accomodation) without planning permission. Is this correct?

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  9. Subject to the standard disclaimer of liability set out in the introduction to this blog, my answer to Tony C’s question is ‘Yes’ (assuming it was originally built as Permitted Development, and was not subject to any condition attached to a planning permission that would have prevented such use).

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  10. This is a really informative blog on our mind bogglingly complex UK planning laws & regulations which is a area frustrating enough for the professional let alone the lay person. I do like the concise and accurate no nonsense way that matters are explained here. Planning is probably the biggest area of gripes that we see coming from our customers; going forward I shall point them in the direction of this blog!
    Thanks
    Tony www.3D-Builders-Manchester.com

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  11. Hi Martin,
    This is the Blog I have been looking for for a long time. A professional who can give a short answer to all the long winded mumbo jumbo!
    I build "Tiny Houses" which have been built and used in the US for over 15 years. They are aimed built as a Teenagers own space (chillout room, sleepover room, study room, or a spare bedroom) but not as a self contained dwelling.
    I have been looking for any legal reason why the are not acceptable in the UK. As you can see, they are not a "Fixed" object and can be moved. The eves height is 2.5m and overall height (on wheels) is 3.9 meters.
    See example link below
    http://www.tinyhouseuk.co.uk/show-home-for-sale.html

    Regards

    Mark

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  12. Unfortunately, the position is not so straightforward as Mark suggests. See my post on Buildings or structures – the Woolley Chickens case (published on Monday, 30 July 2012). If used as ‘primary’ residential accommodation (e.g. for extra sleeping accommodation), as distinct from its being purely ‘incidental’ to the enjoyment of the dwellinghouse as such, this type of structure (if it is classed as a structure, as it could be) would not be Permitted Development within Part 1, Class E of the Second Schedule to the General Permitted Development Order. So it appears that this type of structure might possibly require planning permission. However, it is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in relation to a particular case.

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  13. Hi Martin,
    Thanks for your reply, yes that is pretty much what I had expected. Although, as an office or games room I would guess that is ok.
    Many people email me with the same question daily as the UK law for a "Tiny House" does not seem to fall into a section of its own.
    I would be happy to pass on any leads to you or even include a link on my website, however you may get a load of people asking the same question.

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  14. hi
    I brought a house a few years ago and it had an outbuilding which has a registered with the council will it was first built back I 2004 and passed inspections.

    The outbuilding has been continually used for residential purposes and I’ve been paying council tax on the property. The property also is registered on the address verification system so appears when address look up is done.

    The issue I have is the council have been out to inspect the property and because it was being renovated at the time claim I’ve now lost my privilege to have tenants in there. Is that correct? What’s the procedure they have to undertake to prevent me from renting this property out going forward?

    Your advice would be appreciated.

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  15. I am not sure that I entirely understand Dee’s question, but it would in any event require careful consideration based on its precise facts. It is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.

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  16. Hi Martin,

    This is by far the clearest discussion of this confusing topic that I have yet found - thank you!

    We are soon to move in to our first house, and are looking for ways to lessen the strain on our monthly finances with minimal disruption to our personal lives.

    The building has an existing free-standing double garage which we believe has existed since approximately 1970, and certainly since before 2000. I believe from what you've written above, but would love if you could confirm (subject to your disclaimer of liability etc.), that converting this to an en-suite bedroom and renting it out (with the tenant having shared use of the main house's kitchen) would be PD and not require planning permission?

    However, building a new free-standing structure for the same purpose would require permission; but if it was built for an incidental purpose and used as such for at least four years, it could then be converted to a bedroom under PD?

    Finally, what (if any) interaction is there between the above and other simultaneous permitted development? For example, if we enlarged the existing garage at the same time as converting it (assuming the enlargement itself falls under PD) would this change the situation regarding the conversion?

    Thanks in advance!

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  17. My reaction to this question is that Ben should be very careful. There are so many ‘ifs’ and ‘buts’ involved in the scenario he postulates that advice on the proposal that he canvasses could only be given if I, or one of my colleagues in Keystone Law’s planning law team, were to be professionally instructed.

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  18. Hi Martin,

    Your blogs is just a wealth of information.

    My question to you is about the 50% rule of PD. The words I keep hearing is ancillary and incidental to the main dwelling house, which I think I understand.

    How is this legally defined in terms of sqm. If the ground floor of the original house is 45sqm and the out building is 40sqm. The ancillary area around the original house is 100sqm, no other extensions having been made. So 50%of the area around the original house would mean you could build on 50sqm. Is that correct?

    kind rgds

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  19. In answer to P Gill - The relevant curtilage is the curtilage around the original dwellinghouse (i.e. before any extensions were built and before any outbuildings were added). It includes both the front garden and back garden and any space at the side of the house, although we are talking here about a house on a smallish plot. Not all the land around a house on larger plots in the outer suburbs or in the countryside will necessarily be within the curtilage (as explained in various posts in this blog).

    The area occupied by the original house itself is excluded when calculating the area of the curtilage for this purpose. Up to 50% of the remaining area can be utilised for outbuildings erected as permitted development under Part 1, Class E of the Second Schedule to the GPDO (subject to various limitations and restrictions that are set out in the GPDO).

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  20. This is a very interesting conversation. What I would like to know is what are the planning implications for the myriad of "alternative" holiday homes that have sprung up. You will see them advertised in glossy lifestyle magazines. They even feature on some of the property shows on the TV. These range from shepherds huts to yurts and to converted buses and boats. They are usually completely self contained with bathrooms and kitchens and are let out on a bed and breakfast or holiday let basis. I have a large garden with a lake. What would I need to do if I decided I wanted to rent out a Shepherds hut or a boat in the garden as a holiday let. They would free standing structures.

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  21. Hi Martin,
    I have read your blog with much interest and wonder whether you could offer insight to my current situation. We are in the process of doing the paperwork, searches, surveys etc.to purchase a two bedroom bungalow with a 1 bedroom annexe. We have older daughter at uni who we had on planned on sleeping in the annexe when she is on breaks and when she has finished her degree. However we had a bit of a shock when the building survey we had commissioned (a full structural one) said that we could not use the annexe as accommodation. I rang and spoke for a while with him for clarification but he stated that it did not have planning permission and was unlikely to get it and was not up to building regs.
    It was at this point I searched the internet and found you. Looking at the two different things. Planning and Building regs: Can you confirm that I have understood correctly that as the building was used previously for many years a craft workshop with a kitchenette and toilet used by the owner and her students and then was changed into a lounge and bedroom with the same utilities by the current owners in the last 4 years, it is purely a change of use within class C3 and therefore by virtue of 55(2)(f)of the 1990 Act; planning permission is not required?
    Looking at the 2nd issue building regulations, what should be done by either the vendor or us to confirm whether the annex is up to specification for sleeping in?
    I just want to be sure I am allowing my daughter to sleep in a safe place and would be grateful for your input. Many thanks

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  22. On the face of it, it seems that the position described by Lesley would be covered by section 55(2)(f), so the change of use is within Use Class C3, and is not therefore a material change of use constituting development. HOWEVER, the position needs to be checked out very carefully by the solicitor acting on the purchase. There might be a planning permission for the annexe which imposed conditions on its use. There may be other points that are not revealed in this question which could affect the position. So this answer can be no more than provisional, and MUST NOT BE RELIED UPON without further investigation.

    As regards the Building Regulations, this is a separate issue which could be problematic. “Change of use” for the purposes of the Building Regs does not mean the same thing compared with the use of this phrase in the planning context. Compliance with the Building Regs needs to be carefully checked out. Expert advice should be obtained from a surveyor who is thoroughly familiar with the Building Regs. Even if enforcement action against any breach of the Building Regs is no longer possible, mortgage lenders may refuse to lend on the security of a property that does not comply fully with the Building Regs. I can recall a case in which I was involved some years ago, where a client’s sale fell through for this reason. He had not been properly advised on his purchase (by a different solicitor and different surveyor) with regard to a kitchen extension that did not comply with the Building Regs. It proved to be a rather expensive mistake.

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  23. Thank you Martin, for your very useful advice. We now have a better idea how to deal with the issue. Once again Thanks

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  24. With regard to the anonymous comment on 13 September about holiday homes, the answer to this question is going to depend very much on the precise facts applying to each individual case, but some of these developments may be on rather shaky ground in planning terms.

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  25. Hi Martin.
    I was hoping for a bit of advice. I was in the process of putting up a 3x4m log cabin to be used as storage, summer house and occasional office. I have a very steeply sloping garden and have had to put it within the 2 metres of a boundary. The eaves height of the cabin is 2.295m and the foundation raft platform is another 20cms or so to give me a flat base. I intend to level the slope directly in front of the cabin burying the foundation so the front height to the eaves will be lower than 2.5m

    I thought I could do this as part of permitted development and didn't seek planning. My neighbour has a courtyard type garden, enclosed on all 4 sides by a wall and out buildings of more than 2.5m that creates the back wall onto my garden. Because of the sloping nature of my garden, my cabin is about 10 inches higher than their roof, the neighbour has complained he can see the top of my cabin over his building and it is blocking his view. I do not block his light (he blocks mine) and the view he says he has lost is actually my private back garden. I have halted putting up the cabin and will write to the planners (North Devon), and I was wondering if you had any advice as to the way I should present my side of the story. I have built the cabin there as I have a very long garden but it is shared with the other neighbour so my dogs can't be off lead in that section. Where I have the cabin there is a fenced area and I have agreement that they won't use this part and my dog runs free (he is a rescue, gets frightened and can bite people if I'm not careful) I want to be able to work in the garden cabin 2 days a week so he can run free without lead or muzzle. Do I have a case given the view being blocked is actually my back garden do I have the right to privacy?

    Many thanks in advance for any help you can give me.
    Cait

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  26. Cait's question does not admit of an answer in this forum, as it clearly requires careful consideration based on its precise facts. However, it is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.

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  27. I must apologise for the delay in posting an anonymous comment dated 11 September. Unfortunately, this seems to have slipped through the net. As this comment seems to have expired, I am reprinting it here:

    “Thank you Martin for your very clear response.

    I have been looking at PD apps for outbuildings in my borough. Many of them are being rejected on two main points.

    1) The size of the outbuilding is close, but not larger, to the foot print of the original house. However, they remain within the 50% rule you have mentioned.

    2) There use is not considered incidental to the main dwelling.

    Are planners finding grey areas to undermining PD rights?

    Many thx in advance.”

    If it is being alleged that outbuildings are ‘too close’ to the house to be permitted development under Class E, this would appear to be a mistaken view based on the pre-2008 version of the GPDO (assuming the property is in England, not Wales).

    The other point, regarding the outbuilding being required for purposes that are genuinely incidental to the enjoyment of the dwelling as such, could be a genuine concern and needs to be considered in light of the decision of the Court of Appeal in the case of Emin, which I can’t recall having referred to in this blog (although I have certainly had to discuss it in detail in a number of cases in the course of my work). Maybe I should write a blog post specifically on this issue, when I can find that elusive ‘round tuit’.

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  28. Dear Martin
    Does the PD for Outbuildings apply similarly within the curtilage of a mobile home as opposed to the original "dwelling house" referred to in the wording of the Regulations please?
    With thanks
    Tim

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  29. In answer to Tim G’s question, a mobile home (assuming it is not treated as a building or structure) can have no curtilage – it is simply a chattel stationed for the time being on the land. If the mobile home is within the curtilage of a dwellinghouse, then any permitted development rights for outbuildings will relate to that dwellinghouse, rather than to the mobile home.

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  30. I have built a 6mt long 3mt wide 2.5mt high lean to with no sides and clear roof and have been told that I have broke planning regs could this be true

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  31. I cannot answer the latest anonymous query without being told the full facts. However, it is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.

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  32. Good blog, Martin. Very kind of you to be this informative and helpful. I have been reading through and would like to ask a question.

    I have a 3 bed semi on a corner plot. The garage is at the rear of the garden, which is about 50 foot long and 35 wide, and has fields behind it. I have been considering lengthening the garage to extend across the width of the garden and pitching a shallow roof on it. I don't think I will have problems with being allowed to do this.

    My question is if I did this, what are the chances that in ten or 15 years time I could succesfully apply for planning to convert it into a small studio to either rent out, or for me to live in whilst renting out my house?

    Basically, I'm looking into options for funding retirement. I like where I live and don't want to move but will have to without being able to do this. If chances are slim I will extend the house and increase it's value, if chances are decent,I will extend the garage in the hope of one day being able to convert it.



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  33. This question is too complex to admit of an answer in this forum. However, it is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.

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  34. Martin,

    This is regarding a 3 bed semi in Barnet borough of London. There is a an outbuilding that was already converted into a studio flat with kitchen and bathroom. The property was purchased in 2002 and the outbuilding has been rented since. The front of the building was converted into flats and I had a council anonymous visit and had to provide a statement of when the outbuilding was converted into a dwelling - I stated over 11years. The outbuilding was already a studio when the property was purchased. I then applied for HMO licence for the property because the front property has been split into 4 self contained units. The HMO licencing officer is chasing me with the comment:
    The outbuilding has been vacated, all the kitchen and bathroom facilities removed and that it is now only used for storage/shed purposes.
    If this has not happened I will need to re-visit and inspect the shed for housing enforcement purposes.

    I believe the outbuilding is outside enforcement but unsure of what my next course of action should be as I have not received any reply from planning to whom I provided a written statement.

    Should I be applying for the outbuilding to be a separate dwelling?

    As for the over 11 year proof, I have pictures and rental agreements. The property does not have a separate council tax bill.

    I'm unsure of my position and what I should be doing. Many thanks

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  35. Hi, we have a house which has had a garden shed on it for 15 years. This is now falling into disrepair and we would like to replace it. We had planning permission originally as it is in an AONB which we live. We have been told we can replace the shed with a summerhouse if we wish and not need planning. Would this be the case as the planning portal is unclear regarding replacement sheds. We have been told it is a shed for a shed scenario and is permitted. Thank you

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  36. Hello Martin,

    My neighbour has replaced his free-standing garage with an outbuilding that complies with PD regulations.

    He says it is going to be an office/storage but we know he has plans for it to become an extra bedroom/accommodation. How can we protect ourselves against this happening or is it actually allowed?

    Duncan.

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  37. I am sorry that I am somewhat behind in moderating comments at the moment. The definitive answer to the questions raised in Chili’s query of 21/01/14 will depend on a careful examination of the facts. As such, they do not admit of any response in this forum, but Keystone Law’s planning law team would be happy to advise on the problem if we were to receive instructions in the matter.

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  38. I am sorry that I am still somewhat behind in moderating comments at the moment. In answer to the question raised by Sarah on 24/01/14, replacement of any building is development that requires planning permission – it can’t be classed as a repair. However, it may well be Permitted Development under Part, Class E of the Second Schedule to the GPDO.

    The rules relating to PD in an AONB were discussed in this blog in an item posted on Monday 7 October (“Permitted development excluded in an AONB"). PD under Class E of Part 1 is only excluded in an AONB if the total area of ground covered by buildings, enclosures, pools and containers situated more than 20 metres from any wall of the dwelling-house would exceed 10 square metres, but development closer to the house is OK. In an AONB, development under Class E is also excluded 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.

    If planning permission was required for the original garden shed, because it was excluded from PD for one or other of the reasons mentioned above, then planning permission will be required for its replacement, but if not then it would appear to be PD, unless PD rights have been excluded either by a condition attached to a planning permission relating to the property or by an Article 4 Direction.

    Maybe Sarah should put these points to the planning officer and ask them to explain precisely why they think the replacement building requires planning permission.

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  39. My apologies for the slight delay in moderating the comment from Duncan submitted on 03/02/14. Domestic outbuildings can only be erected as permitted development under Part 1, Class E if they are required for a purpose incidental to the enjoyment of the dwellinghouse as such. This does not include extra bedrooms or sleeping accommodation. If Duncan believes that the new outbuilding is intended to be used for this purpose, he should alert the council’s enforcement officer to the situation. Any use of the new outbuilding for sleeping accommodation or any other primary residential use within the next few months (maybe up to a year at the outside from the date of its completion) may well indicate that it was not required for a purpose incidental to the enjoyment of the dwellinghouse as such, and was not therefore PD within Part 1, Class E. Leaving it empty in the meantime would also indicate that it was not ‘required’ for those purposes. These points should be drawn to the attention of the council.

    On the other hand, if the outbuilding was genuinely required for a purpose incidental to the enjoyment of the dwellinghouse as such (as evidenced by its use for such purposes) and if that use continues for, say, a year or more, then there is nothing to stop the outbuilding subsequently being used for sleeping accommodation or any other primary residential use after that initial period of use for purely ‘incidental’ purposes. However, this does not enable the outbuilding to be used as a separate private dwelling.

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  40. Hi Martin. What a wealth of information this blog holds. I'd love your advice on this matter. We have gained a certificate of lawfulness for an outbuilding of approximately 600ft2 - gym/playroom. We also have gained permission to demolish our house and rebuild it. Can we rebuild the house so it joins the outbuilding and incorporate it into our new build? Or can we link the two without planning permission? I look forward to hearing your views. Kind Regards

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  41. The latest question from Anonymous (18/02/14) does not admit of an answer in this forum, as it clearly requires careful consideration based on its precise facts. However, it is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.

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  42. Dear Martin,
    RE; CERTIFICATE OF LAWFUL USE OR DEVELOPMENT

    Can the Council issue a certificate of lawful for Use or Development:-
    "The existing development constitutes permitted development by virtue of the
    provisions of Schedule 2, Part 1, Class E of the Town and Country Planning
    (General Permitted Development) Order 1995 as amended by the Town and
    Country Planning (General Permitted Development) (Amendment) (No2) (England)
    Order 2008."

    and then limit the use, rather than confirming that the use applied for is within PD rights.

    "The use of the outbuilding hereby approved shall be for the purpose(s) stated on the
    application form and drawing/s ( my insertion a STORAGE SHED ). Use of the outbuilding for purposes such as a living
    room, bedroom, kitchen, bathroom, study or as a separate unit of accommodation
    constitutes a primary use that is not incidental and likely to invalidate this certificate.
    Furthermore, the Local Planning Authority may pursue enforcement against
    breaches of planning control, which may involve legal action through the Courts."

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  43. Hi Martin

    We have a rural property about half a mile from the nearest public road with some 10 acres of land. We wish to bring a Mobile Home (30 ft by 10 ft) onto the property. We intend to use the mobile home for my daughter to live in. As we are both pensioners, our daughter will drop in on us but be independent. We will supply electricity and water from the main house some 50 yards away. Will this be classed as Permitted Development?

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  44. In answer to Robin (26/02/14), the proposed stationing of the mobile home for the purpose stated would not be Permitted Development, because it would not be “for a purpose incidental to the enjoyment of the dwellinghouse as such”. (Sleeping accommodation does not come within that definition.)

    It might be argued that stationing the mobile home as proposed is not development at all, but I would not be confident in asserting this without more detailed knowledge of the facts, and this is in any event a problematic area of planning law. However, it is the sort of point on which Keystone Law’s planning law team would be able to advise if we were to receive instructions in the matter.

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  45. In answer to the anonymous query of 23/02/14, the wording of this LDC does seem a little quixotic. I can see what the LPA is trying to say, but this is not really the right way of going about it. The point is that the initial use under Part 1, Class E must be “for a purpose incidental to the enjoyment of the dwellinghouse as such” (and not for some primary residential purpose). However, it is not really necessary to spell it out in the way the LPA has attempted to do in this case.

    It is worth bearing in mind that the lawfulness of the development does not depend on the issue of an LDC, and so it follows that the LDC cannot limit or condition the use of the building in any way. If the LPA is trying by means of this wording to prevent a change of use of the building to primary residential use at some later date, then frankly they are acting ultra vires. Subject to the rule in Kwik Save, which suggests that the use of the building for the initial ‘incidental’ purpose must continue for more than just a few months (maybe a year?), there is nothing to prevent the subsequent use of the outbuilding after thgat time for primary residential purposes (e.g. extra sleeping accommodation), provided it is not used as a separate private dwelling.

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  46. Hi, a great site and you probably have to answer the same question albeit slightly different many times over.
    So here we go! I have a detached double garage on a 0.3 acre plot with detached house. I wish to convert the garage (over ten years old) to accommodation for my elderly mother with bathroom, bedroom, kitchen, living space. It is about 33sq m. I have been told by the council that full planning is required and been pointed to "The technical guidance produced by the Department for Communities and Local Government on permitted development for householders states that normal residential uses of outbuildings, such as separate self-contained accommodation and primary living accommodation (such as a bedroom, bathroom or kitchen) require planning permission" but I am not so sure now having read a few articles? Would you mind commenting? Thanks

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  47. As I explained in the post I published on Wednesday, 2 April, there has been an inevitable hiatus in the publication of the blog for the past fortnight, and this has also affected the moderation of comments. So I am sorry that the anonymous comment of 26/03/14 has had to wait until today before it appeared.

    If one were erecting a new building within the curtilage under Part 1, Class E, then it is correct that it can be provided only for purposes that are strictly ‘incidental to the enjoyment of the dwellinghouse as such’, and it is well settled law that this does not extend to the provision of primary residential purposes (such as extra bedroom accommodation).

    However, where the outbuilding (in this case a garage) already exists, it does not appear to me that the conversion of that outbuilding to provide a ‘granny annexe’ would necessarily need to rely on Part 1, Class E. I haven’t got time to go into in any more detail here, but provided the additional accommodation is not a separate dwelling but remains functionally ancillary to the main dwelling, it may not amount to development at all, except to the extent that any external alterations are proposed.

    This enquirer ought to seek proper professional advice before proceeding (particularly as regards any external alterations), but there may be a way forward here.

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  48. Dear Martin
    This is a very interesting blog.
    In my case, we have an original 2 storey coach house at the end of the garden of our Victorian house. The garden, and therefore the coach house, accessible via a gate from the main road without going through the house.

    We propose to use this for living accommodation for my mother, installing a kitchen and bathroom. It has had running water and electricity for at least 40 years.

    We would argue that the building has been incidental to the enjoyment of the dwellinghouse in various ways for over 100 years. Are we now able to change it to ancillary use without planning permission?

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  49. Permitted development is going ahead next door for an attached extension of approx 14.43 cubic metres and also an outbuilding (10cm away from main building) of 107 cubic metres. Previous planning permissions and appeal rejected this proposal for sizing massing and overbearing. Are there any volume limits in place for Class E permitted developments? Can two buildings be built at the same time under Permitted Development? Any help with this issue would be appreciated. Thank you.

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  50. In answer to Bill (16/04/14) – “It depends”. I would not want to pronounce on a case like this without checking the factual position in some detail. One of my colleagues in our planning law team would be happy to advise if we were to be instructed.

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  51. I am sorry that I don’t have time to go onto the facts mentioned in the anonymous comment of 21/04/14. Any concerns as to possible breach of planning control should be drawn to the attention of the council’s enforcement officer.

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  52. Hi guys, there is a free download on the planning page of this website for a guide to permitted development, I found this very useful. http://www.oakgarages.com/oak-framed-garages/planning-design

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  53. Hello Martin,

    Many thanks for your interesting site! I have scoured the internet but cannot find a simple answer for a few simple questions - I hope that you can help!

    I have a double garage outbuilding, which has existed since the property was built (1930's). I have an extensive driveway and no need for garage parking.

    A) Would it be permitted development to fit this garage out with a bedroom/kitchen/bathroom so as to make it independently habitable for an elderly relative?

    B) Could I demolish the structure and rebuild it under permitted development with perhaps a larger footprint?

    C) Could I do both of the above simultaneously under permitted developmemt?

    D) When this elderly relative passes away in due course could the building be rented out to tenants or indeed sold on as separate dwelling?

    Many thanks in advance!

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  54. This query of 27 December seem to have slipped therough the nest, and I have only just come across it. The answers are:

    A) No.
    B) Possibly, but this will depend on exactly where it is in relation to the house, and various other factors that could affect the position. However, it could only be built as permitted development under Class E of Part 1 if it is required for a purpose incidental to the enjoyment of the dwellinghouse as such, and that does NOT include primary residential accommodation, such as extra bedroom space, kitchen, bathroom, etc.
    C) No.
    D) No.
    So taken as a whole, the answer to the query is - a lemon!

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  55. A direct neighbour has just been given planning permission for a 6m rear single storey and part 3m double storey plus hip to gable end loft conversion incorporating rear dormer plus a porch and single storey side extension. The applicant is currently living in the property which has been developed to a huge scale without any planning consent. Numerous applications have been submitted by the applicant previously all refused and by 3 separate planning inspectorates at appeal. The extensions deemed unlawful should have been removed immediately back in June 2015. However this did not happen and despite numerous complaints from ourselves and other objectors no enforcement action was undertaken. We now after enduring a year of building works and anti social behaviour from the home owner are faced with the prospect of noisy demolition work(if indeed it ever happens) and many more months years of new building works taking place. We are adjoined to this property . We live in a semi detached property within Green Belt and are aware of Green Belt Policy. How have the planning department allowed planning permission on extensions over and above 50% just because the applicant "could build" something similar(or so we are led to believe) using PD rights. Surely that is a conflict of interest and not for planning officers to back down over threats such as this.

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  56. Getting a local planning authority to take effective enforcement action can be something of an uphill struggle. I can only advise persistence, including applying political pressure through local councillors. Ultimately, however, these and related matters (such as granting retrospective planning permission, or allowing further extensions) are within the discretion of the council, exercising their planning judgment and taking into account any legal constraints which might affect their decision.

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  57. Hi Martin
    We have an outbuilding which was built as a garage, gym and office building. Three years later our teenage children wanted to occasionally, at weekends sleep in it with their friends and so we put a couple of beds there. We then installed a sink and loo so they can sleep comfortably overnight.
    My question is, could the council charge us council tax on our garage as it is used for the teenagers occasionally at weekends?

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  58. In response to Amanda Pitman’s query of 27 January, I cannot give legal advice through the medium of this blog, but if the outbuilding was originally built under Part 1, Class E for purposes incidental to the enjoyment of the dwellinghouse as such (as appears to be the case), then its use three years later for additional sleeping accommodation (i.e. as part of the primary residential use of the dwellinghouse) was perfectly lawful. The installation of washing and toilet facilities would not affect the position, provided that the accommodation in this outbuilding continues to be purely ancillary to the use of the residential property as a whole, so that the outbuilding does not become a separate private dwellinghouse. (This depends on its actual use, not on the facilities that it contains.)

    The problems that some authorities (especially in parts of Greater London) have with ‘beds in sheds’ is that these are being let out for separate occupation, and thus a change of use has taken place in those cases, contrary to section 55(3)(a).

    If the outbuilding in this case continues to be used for purely ancillary purposes as part of a single residential use of the property as a whole, there should be no question of separate council tax being charged on the outbuilding. Home improvements can sometimes take a property into a higher rate band for the purposes of council tax, but this would be subject to a decision by the valuation officer (and would be open to appeal).

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  59. Hi Martin
    Just beyond our back garden wall a neighbour has "converted" his lock up garage (part of a row of 6)into a storage shed, but has replaced the flat corrugated roof with a full apex roof that extends to a height of 3.06m.The gable end has been fitted with a window which directly overlooks our gardens. As it is within 0.5m of the boundary wall, which is 2m high,we objected to the council.
    The neighbour put in a retrospective change of use application, which the council has approved - including retaining the overheight roof. The approving officer wrote
    "The previous flat garage roof has been replaced with a pitched roof with a maximum height of approximately 3.06m. Whilst it is recognised that this does not accord with the remaining roof lines in the row of garages, the outbuilding is considered to be superior in design and materials and is not considered to be detrimental to the visual appearance of the area."
    So the council can approve an overheight building just because they like the materials - no matter the fact that we have a 6m x 2m shed roof (complete with window)clearly visible from our houses and gardens. What happened to planning law?

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  60. The answer to Chairman Dave is that this does represent a correct application of planning law. A breach of planning control was identified and the Council sought to resolve this by the fairest and most effective method, which in this case involved considering an application for retrospective planning permission.

    Ministerial policy and practice guidance clearly advises local authorities against automatically taking enforcement action in such cases if the breach can be remedied by other means. The breach in this case seems to have been fairly minor (in terms of the height limit for permitted development having been slightly exceeded), and on considering the application for retrospective planning permission, the planning merits of the case clearly justified a grant of planning permission. So Chairman Dave has no ground for complaining.

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  61. Very helpful blog! my question is about repair or replacement of an outbuilding within the curtilage of a listed building and in an AONB. The outbuilding has been there for probably 20yrs.( used as art studio and storage) it's area is about 27m2 (so above the 10m2 allowed away from the house) Am I right that repair is allowed, but replacement may not be? It needs substantial repair, and a new roof, but if we keep the same footprint, materials etc and retain as much of the existing structure as possible could this be ok? (and I assume we would need to keep photographs of the old shed I case of future queries...) We would prefer to replace, but don't want to risk this not being permitted, so are happy to repair instead...Your thoughts would be appreciated. Thank you

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  62. Erection of a new free-standing building within the curtilage of a listed building needs planning permission (but not listed building consent). The distinction between repair and reconstruction is ‘a matter of fact and degree’, so it would depend on precisely what works are to be undertaken.

    Repairs involving substantial demolition and replacement or re-erection of the existing walls of a building (even if the building is completely intact prior to the commencement of these works) would require planning permission, because complete rebuilding goes outside the scope of “maintenance, improvement or other alteration” of the building and is specifically included in the list of works within the definition of “building operations” in section 55(1A). Rebuilding the walls separately, one at a time, would not avoid this. As one judge observed (see Hewlett v. SSE [1985] JPL 404, per Lord Donaldson, M.R.), you could not rebuild by stages in such a way as to produce what is in effect a new building and still be able to maintain that it is merely the old building in an improved form.

    Even leaving a significant time interval between the rebuilding of each wall might not bring the work within the exemption under section 55(2)(a). Lord Donaldson, in his remarks quoted above, suggested that to achieve exemption there would have to be a very long separation between the stages. He observed that in argument in the course of the hearing “a century or so was suggested” (!)

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  63. Thank you... I don't think we shall wait centuries! I shall have pre-app meeting with the planners and get their view. I appreciate your thorough response... interesting!

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  64. Hi Martin

    Both your blog and book are proving very helpful!

    Although not expressly referred to in Class E GPDO legislation, I am aware that some leading case law mentions the occupier and more specifically, 'the whim of the occupier'.

    Are you aware of any case law or appeal decisions that deal with a proposed outbuilding where there is no occupier of the dwellinghouse or the house being owned by a development company?

    Your thoughts would be greatly appreciated.

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  65. My anonymous correspondent of 15 March no doubt has in mind the judgment in Emin v SSE (1989) 58 P. & C.R. 416, which is probably the best summary of the legal principles that apply in such cases. There are other decisions that may be relevant in particular circumstances. Development under Part 1, Class E has to be “required for a purpose incidental to the enjoyment of the dwellinghouse as such”. Emin discusses the meaning of both “required” and “incidental”.

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  66. Hi Martin,

    This blog is like a breath of fresh air in a very complex area, I have a question that I hope you may be able to shed some light on.

    I have received conflicting information on the conversion of a barn that I own, it is a small two story shippon barn that is detached and lies across the courtyard from our farmhouse. It is a private house and has not been a working farm for over fifty years, there is the farmhouse and two stone barns dating between 1580 and 1820.

    I would like to convert the smaller of these barns into a self contained annex for my parents who are both in their mid seventies, this would have an open plan lounge / dining room and a kitchen on the ground floor, with a single bedroom and bathroom on the first floor. I am intending that this would share all of the utilities with the main house, would this qualify as permitted development? I have been told by a friend who is a house builder that it would need planning, as it is too big, being two story to be permitted development.

    This conflicts with some of the information that I have read on your blog, so any help would be appreciated.

    Thank you

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  67. On a similar vein, my neighbour has applied for planning permission to build corrugated/tin residential rental accommodation, to a roof terrace area, on the sixth floor of a block of flats.

    Internal structural works have been on going for two years now, turning many of the floor's accommodation into single occupancy lets, that appear should be, and are not, in to registered licensed HMO lets.

    The neighbour was once politically high up in the local council's mayors office, since there has been no previous planning application, no HMO license, is there a conflict of interest, and is it possible to call the whole application/building site into more stringent scrutiny.

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  68. The anonymous comment of 1 April raises too many points to admit of an answer here. If it is felt that the provisions with regard to HMOs have been breached, then the housing authority (the council) should be alerted to this. Similarly, any planning concerns should be taken up with the planning department, either as an objection to the current planning application or as an enforcement complaint if it is felt that there has been any breach of planning control.

    The council’s officers will have to use their professional judgment on these issues, and cannot be forced to take action if they feel either that no breach of the legislation has occurred or that attempted enforcement action would serve no useful purpose.

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  69. Having had our fingers burnt after buying a farm with the view of extending under permitted development and costing £1000's seeking professional prior to purchase- this ended without planing being approved so we then we moved onto another house purchase - A Manor House set in 32 acres Not listed Not in a conservation area with a floor area of 16000 square ft - with the previous experience we decided to meet with the planners to discuss our plans before purchasing - the planners were happy with our plans and agreed we could do this under permitted development as the extention would only extend to 25% of the main house

    Now house purchased and plans sent into the planners - all within the permitted development guidelines they now say size of the gym/cinema room/bar which is 2200 sq ft that it is not ‘incidental’ to the enjoyment & use of the dwelling and therefore a planning application is required for the proposal. How can this be ??

    Whilst the extention seems large my family together with my 3 brothers will be moving in so a total of 4 families equalling 16 people so in relation not excessive.

    Please help
    Regards Binder
    binderb@hotmail.couk

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  70. In answer to Binder Bhardwaj, the leading case on this issue is Emin v. SSE (1989) 58 P. & C.R. 416; [1989] J.P.L. 909. In that case, the Court held that an inspector was wrong to have considered that the proposed buildings (for archery, billiards and pottery) could not reasonably be said to be required for a use reasonably incidental to the enjoyment of the dwellinghouse as such, because they would provide more accommodation for secondary activities than the dwellinghouse provided for primary activities. It was held that this was not part of the test as to what buildings fell within this Class.

    It should nevertheless be borne in mind that every case must be determined ‘as a matter of fact a degree’ in relation to the circumstances that apply in that case. So this issue may have to be the subject of an application for a Lawful Development Certificate (and an appeal to the Planning Inspectorate under section 195 of the 1990 Act if it is refused by the council).

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  71. I would be interested to know whether anyone feels that a garage block is B8 use class? The one I have in mind is a freehold and sites behind a block of flats in separate ownership. It appears to me to be a separate planning unit, and as it is clearly not a dwelling house (C3), I feel it the garages are used for storage (cars and boxes etc). However, someone else I was discussing this with insisted it is sui generis, which surprised me. If a use fits neatly into an existing use class, why would it be sui generis?

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  72. The short answer to my anonymous enquirer of 25 April is that the use of the garages is sui generis, and that they definitely don’t come within Use Class B8. This answer is predicated on the assumption that the garages are used primarily for keeping a car or other road vehicle. If a garage is used solely for storing other items, but not a vehicle, then a change of use of that garage to a storage use within Use Class B8 may have taken place, but not otherwise.

    This is a topic discussed in my next book, due to be published in about a year’s time. I don’t propose to reproduce the text here, but if readers can’t wait a year for the book, the decision of the Court of Appeal in Crawley B.C. v Hickmet Ltd (1998) 75 P. & C.R. 500 may be helpful in explaining the point. This and a number of appeal decisions relating to airport parking confirm the sui generis nature of this type of use, and the principle would appear to apply equally to the garages in question here.

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  73. My neighbour has begun fairly extensive works on a field that overlooks my property (it's higher than my garden) . His intention is to use this as a 'glamping' site. The first we knew about this was when the heavy earth moving equipment arrived. Neighbour says that as he's going to use wheeled huts, he doesn't need planning permission. Is this the case?

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  74. The anonymous comment of 4 May raises the possibility that several breaches of planning control may have occurred or be about to occur.

    There are three possibilities, any or all of which may apply:

    (1) The earth-moving may be an engineering operation requiring planning permission;

    (2) The installation of wheeled huts may amount to building operations, which require planning permission. The fact that these are wheeled huts may not prevent their being classified as buildings or structures (see the remarks of Schiemann LJ in Skerritts of Nottingham v. SSETR (No.2) [2000] J.P.L. 1025 and the High Court judgment in R (Save Woolley Valley Action Group) v. Bath & North East Somerset Council [2012] EWHC 2161 (Admin);

    (3) The use of the land for leisure purposes (‘glamping’) may well be a material change of use of the land, which would seem unlikely to fall within the permitted development under either Part 4 or Part 5 of the Second Schedule to the GPDO.

    The planning enforcement officer at the local council should be alerted to this development as soon as possible.

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  75. Could you please explain what is incidental use means when it applies to a separate dwelling which already has permitted self-contained elements (kitchen, bathrooms bedrooms etc) We have a planning permission for a property which restricts the use to short-term holiday lets, or for use on an unrestricted basis by people employed by the property next door, or for anyone else if the use is incidental to this property. I am not sure what this means and how one can determine what is incidental in these circumstances since the property is already permitted to be used as a separate dwelling. We wish to get the restriction lifted but the planning officer is resistant on the grounds of unsustainablity. However, since the property is considered sustainable for some people, it doesn't seem to make sense.

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  76. The anonymous enquirer of 10 August is going to need proper legal advice. The recited facts do not admit of any useful comment here.

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  77. Thank you for this great blog, Martin. Would you please clarify something for me, if you can? Assuming that a planning application is not required for a change of use from a timber framed garden office (erected 4 years ago as a PD) to a bedroom for a family member, would different building regulation criteria now need to be met, for example, deeper foundations than were originally required for an office? Would it now need to be inspected by BC, or would it be enough to ensure that it conforms to BC standards?

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  78. Unfortunately as part of a redevelopment project I moved a shed that was 2.8M high to within 1m of the bondary. As a consequence one of my neighbours complained and I had to apply for a retrospective planning permission. When I disputed this with my architect he stated that because it was an existing shed then it was permitted development. I have found no reference to this point anywhere. Is there any truth to it?

    Colin

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  79. Moving a building has exactly the same effect as erecting a new building. The fact that it (or a similar building) existed nearby does not affect the position. The shed in its new position counts as a new building which, on the face of it, appears to fall outside the size limits in Part 1, Class E of the Second Schedule to the GPDO.

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  80. In response to the question from James A (30 August), an outbuilding erected as PD under Part 1, Class E must initially be used only for a purpose incidental to the enjoyment of the dwellinghouse as such, which precludes its use as primary domestic accommodation (such as extra sleeping accommodation, etc.). However, there is nothing to prevent its subsequently being used for such a purpose, provided it does not become a separate private dwelling. The rule in Kwik Save would prevent this happening until after a decent interval (say, at least a year), but that is the only constraint.

    James is quite right, however, to raise the issue of the Building Regulations. I am certainly no expert on the Building Regs, but I do know that “change of use” (differently defined for the purpose of the Building Regs, compared with the use of the same term in the planning legislation) may require Building Regulations Consent, and this necessarily involves compliance with the Building Regulations. However, that is about as far as my knowledge stretches. A chartered surveyor who is thoroughly conversant with the Building Regs should be asked to advise.

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  81. Hello Martin,

    You mention that this relates to outbuildings built under the GPDO in some cases. Presumably if the outbuilding being a garage was built at the same time as the original house, and then used as a garage for 20 years then, as it is all C3, s.55(2)(f) would still apply and it could be converted to primary accommodation. It does not matter whether it was built under the GPDO or with planning permission, unless within the approval there was a condition restricting it's use. Is this all correct?

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  82. In answer to Richard (8 November), absent a condition prohibiting any use other than as a domestic garage, there would appear to be nothing after this length of time to prevent the garage being converted to use for other domestic purposes (subject to compliance with the Building Regulations), provided this does not create a separate dwelling.

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  83. Hi Martin

    We replaced a wooden outbuilding with another wooden outbuilding on the same footings. We have no issues with neighbours as it does not border any neighbours land but the planning officer said it's a new structure built within 2m of one boundary of an AONB land and 2.9m high and therefore requires retrospective planning. Just trying to find out if this is true?

    Thank you

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  84. A replacement building constitutes development (and cannot simply be claimed to be a repair of an existing building). If the new building falls outside the parameters of permitted development under Part 1 of the Second schedule to the GPDO, it requires planning permission.

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  85. Dear Martin,
    Thanks for your very informative blog. I am having a big problem with a site and I hope you can help.
    My client bought a property that was in bad repair but initially intended to fix it up. When they started, they realised that it was much worse and so applied for a replacement house. In the meantime, they built an outbuilding (all under PD but is brick and looks like it could be used as a house) initially for storage, and then got the idea to live in it temporarily while the main house was being built. They applied for permission for the outbuilding and got refused for both.

    We then reapplied for a smaller replacement house, basically using a few existing walls so it would be under householder and applied for temporary use of the outbuilding and again both got refused, both times at committee.

    We now have an appeal for the house and a LDC application for the outbuilding (not for accommodation, just ancillary, all PD) and the council is planning to refuse the LDC because the main house is not lived in. They ignore the point that it could be lived in had any of the applications been approved, and the fact that there is extant planning permission for an extension.

    Does the main house need to be currently occupied for an outbuilding to be approved? Should they wait to see what the appeal outcome is (1-2 weeks)? This council is notorious for being inconsistent and we've had a different PO each time.

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  86. This comment has been removed by the author.

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  87. The key to Kate Clifford’s question of 28 March lies in the actual wording of Part 1, Class E itself. The building or structure in question must be “required for a purpose incidental to
    the enjoyment of the dwellinghouse as such
    ”. I have discussed the point in my book, The Essential Guide to the Use of Land and Buildings under the Planning Acts by reference to cases such as Emin, both in Chapter 3 – Changes of Use – an overview under paragraph 3.4 – Incidental uses (on pages 39 – 42) and then in Chapter 13 – Dwellinghouses under paragraph 13.15.5 – Incidental or ancillary use of outbuildings on pages 172 to 176.

    To put it briefly, the house would surely have to be in actual residential occupation in order that the proposed outbuilding can be said to be required for a purpose incidental to
    the enjoyment of the dwellinghouse as such, under the trms of Part 1, Class E.

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  88. We moved to our new house nine years ago, and inherited a wide selection of large sheds (roughly totalling 30msq). Five years ago, they instituted the South Downs Park, which now means permitted development of outbuildings within it, is 10msq.

    The state of repair and form of construction of all of the original sheds is extremely poor (some are beginning to fall down). I wish to replace all of them as one building. Does their construction prior to the SDP constitute as prior development? If I was to demolish them all, could I replace with their combined total area, or would I now need to abide by the 10msq rule?

    Kind thanks.

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  89. Hi All, thanks for a great blog. Quick question. If an applicant is granted an LDC (for an outbuilding) despite objections from neighbours, can those same neighbours appeal and have the LDC pulled at any point (assuming no change in use).

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  90. In answer to my anonymous correspondent of 19 July, a Lawful Development Certificate is conclusive. The council can only revoke an LDC (under section 193) if, when the application was made, a statement was made or a document was used which was false in a material particular, or if any material information was withheld. An LPA seeking to revoke an LDC would have to comply with the procedure set out in Article 39 of the DMPO 2015, including giving notice to the landowner and giving them the opportunity to make representations. Failure to follow this procedure has led on at least one occasion to the revocation of an LDC being quashed by the High Court. [See paragraph 20.10 in Chapter 20 of The Essential Guide to the Use of Land and Buildings under the Planning Acts (pages 311 to 312).]

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  91. I would strongly urge my anonymous correspondent of 8 July not to allow any of the buildings to fall down, nor to demolish them. Repairs to these buildings, provided this does not amount to rebuilding, would not be development. However, getting planning permission for the replacement of these buildings might prove problematic. A planning consultant should be engaged to advise on any alternative proposals, and to formulate an appropriate application for planning permission for their replacement. In the meantime, it is essential that the existing buildings should be preserved intact. Their loss in the meantime could seriously prejudice the prospects of gaining planning permission for their replacement.

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  92. This is a fantastic blog Martin, you do an awesome job of clearly explaining a very tricky subject !

    I would like some help regarding a garden room that I would like to have for a full size snooker table.

    The room would be in my rear garden, with the sides being 1m from the boundary and 6.8m from the rear of the house. The total area of the garden is 136.4m2, with the room being around 42.6m2 (interior). The height of it would not exceed 2.5m and have a flat roof. The garden does have an oak tree at the bottom of the garden with a tree protection order on it. The room would fall within the root protection area. I would also like to put a toilet in the room along with a sink for tea and coffee making.

    All of my immediate neighbours are happy for me to build the room.

    I have had 3 garden room suppliers give me 3 conflicting recommendations. The first said I would need a certificate of lawful development. The second said planning permission would be required. The third said it would not need any permission as it would be permitted development.

    From my reading of the permitted development rights, it should fall into class E and should not need a COLD / planning permission.

    There are however 3 areas of concern:
    1) Whether the addition of a loo / sink means that the purpose of it is not incidental to the enjoyment of the house (I have a downstairs loo and an upstairs bathroom)
    2) Whether the proximity of the tree requires permission from the council. All the providers claim that their foundation system is non-impacting to tree roots and that they will involve building control during construction.
    3) If I go ahead on the assumption it is permitted, could the council later require me to pull it down?

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  93. I cannot advise Raymond (30 August) without knowing the full facts, but the key to this question will be found in judgments such as Emin and Pêche d’Or Investments. [See paragraph 13.5.5 of Chapter 13 in my book “The Essential Guide to the Use of Land and Buildings under the Planning Acts” (on pages 172 to 176).]

    The question of the tree would be too detailed to discuss here. You may need to engage an arboricultural expert to advise on the risk of any damage to the tree's root system.

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  94. Hi Martin

    Thanks again for your blog which, as a planning consultant, I return to time and time again - as I do your books!

    I have two questions which I initially thought would be straight forward to answer, but I can't seem to get to the bottom of them, so thought it might be useful to debate:

    1. Once an unauthorised use becomes lawful (i.e. an outbuilding within the curtilage of a residential property that has been uses as a separate dwellinghouse for holidays lets for a period of 20 odd years), do any breaks or cessations in that use become important? Would a break in that C3 use in the future (for example, the resi use might stop temporarily but for a period of a few months for building works to be completed to upgrade the roof, etc.) mean that that once lawful - but unauthorised - use has now ceased, and would the LPA be within their rights to pursue enforcement action against it? And would a CLUED make any difference?

    2. If an unauthorised use is now lawful, (whether or not a CLUED has been issued), does that building/dwellinghouse now benefit from PD rights under Part 1 Class A of the GPDO? It seems from p.72 of your 'Use of land and buildings' book that it does, or have I misinterpreted that?

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  95. Hi Martin,

    Firstly, I must concur with other contributors in that, as a starting point, your blog is invaluable, as well as hugely informative.

    Anyway, to the heart of the matter, and perhaps a little side-step from the bulk of discussion to date, my query is regarding alterations/extensions to an existing (lawful) outbuilding. I am being told by my LPA a proposed extension of an overall height of 2.5m, within 2m of a residential boundary and cumulatively less than 50% ground cover etc, etc, is not PD as the existing building (to which is to be attached) is more than 2.5m high. The LPA is relying upon the current PD Technical Guidance [E1 (e)], which advises the whole development must be no more than 2,5m high, interpreting this to mean both the proposed and existing buildings.

    I'm sure the Technical Guidance is referring solely to the proposed extension, clarifying that even if the highest part is more than 2m from the boundary, the entire (proposed) structure is caught by the 2.5m restriction. Otherwise, any other alterations to the existing building, such as a roof skylight, new door position etc would all require a formal permission from the LPA.

    I would very much appreciate your opinion on this and any relevant reference(s) there may be in case law or other clarifying documents.

    Many thanks in anticipation,

    Marcus.

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  96. Helen has raised what might reasonably be classed as a Frequently Asked Question.

    The case of Panton and Farmer established that once lawfulness has been achieved (whether under the 4-year rule or under the 10-year rule, whichever is applicable), any later discontinuity of the use in question after that date does not undermine the lawfulness that has been acquired, provided the use is not then abandoned. The only proviso is that if a Lawful Development Certificate is to be sought (although this is not usually necessary unless there is some doubt or dispute about whether lawfulness has been achieved), the use must be continuing at the time of the LDC application, even though it may not have been continuous between the end of the 4-year/10-year period and some date prior to the LDC application.

    Once a development becomes lawful, it is lawful for all purposes, and so permitted development rights would then attach to that building or use in the usual way (subject to all the usual restrictions and provisos). Article 3(5) of the GPDO, only precludes permitted development in connection with an existing building if the operations involved in the construction of that building are [i.e. remain] unlawful, or in connection the use of a building or land, if that existing use is [i.e. remains] unlawful. The fact that the building may have been unlawful when it was built or enlarged, or that the use may originally have been unlawful, no longer prevents PD rights being exercised once immunity from enforcement (and therefore lawfulness) has been attained under the 4-year rule or 10-year rule (whichever is applicable).


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  97. The background to Marcus’ question is that there are several different height limits in Part 1, Class E which sometimes get confused.

    In all cases, the height of the newly erected building at the eaves must not exceed 2.5 metres (paragraph E.1(f)).

    With the exception of buildings close to the boundary of the curtilage (see below), there is an overall height limit of 4 metres in the case of a new building with a dual-pitched roof, or 3 metres in any other case [i.e. if it has a flat roof or mono-pitch roof] (paragraph E.1(e)(i) and (iii)).

    However, if the new building is within 2 metres of the boundary of the curtilage, the overall height limit is 2.5 metres (irrespective of whether it has a flat roof, a mono-pitch roof or a dual-pitched roof) (paragraph E.1(e)(ii)).

    Marcus’ question actually relates to alterations or extensions to an existing lawfully erected outbuilding. Class E(a) includes the maintenance, improvement or other alteration of a building erected as PD under Class E, to which the height limits mentioned above also apply.

    I take it that the original outbuilding was not within 2 metres of the boundary, so that the 3m/4m height limit applied (subject to the 2.5m limit at the eaves). But, as I understand it, what is now proposed will extend the outbuilding to within 2 metres of the boundary.

    I suspect that when the GPDO was drafted, this situation may not have been anticipated, and so it is unclear whether the provisions of paragraph E.1(e) should be applied solely to the new extension, or whether they should apply to the whole building. I can see potential arguments in favour of either or both of these interpretations.

    On the one hand, it could be argued that by extending this existing building to within 2 metres of the boundary, the impact of the whole building on any neighbouring property is thereby increased, and this would justify a restrictive interpretation, so that even an extension of the building that is in itself no more than 2.5m in height would not be permissible if the existing part of the building exceeds 2.5m in height (even though the original erection of that building was perfectly lawful).

    On the other hand, it could be argued that a restrictive interpretation would be anomalous if it results in an extension which in itself is within the 2.5m height limit nevertheless being precluded solely because it would result in a building of which part was already lawfully over 2.5m high now extending to within 2 metres of the boundary.

    The interpretational problem arises from the fact that the height limitations mentioned above apply simply to “the building" and, in the absence of any provision to the contrary, this could be taken to refer to the whole building, and not just to the alteration or extension. It might arguably justify the approach that the LPA seems to be taking in this case.

    In summary, I really don’t have an answer to this question. If the LPA won't budge, it may be necessary to apply for an LDC under section 192, and to appeal any refusal of that application under section 195. However, I make no prediction as to the outcome.

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  98. Hi Martin,
    As most have said, massive thanks for this blog that bring clarity on what I find confusing topics.
    We are thinking about building a garden office with a toilet that we can use when we work from home. In a few years’ time when our young boys want their own bedrooms, we were also planning to add a bed in the office where their grandmother can sleep when she visits.
    So I think I would meet the incidental use for a long period and thereafter change it to purely ancillary use of the residential property as a whole and not become a separate private dwellinghouse.
    However, I have looked on the planning website for my council and have noticed they use these conditions a lot for the approved outbuildings:
    “The outbuilding hereby permitted shall be used only in conjunction with and ancillary to the main use of the premises for garden office and shed purposes. To prevent the introduction of an independent use without prior approval by the local planning authority”
    "The outbuilding hereby permitted shall be used only in conjunction with and ancillary to the main use of the premises for home gym/leisure room purposes. To prevent the introduction of an independent use without prior approval by the local planning authority”
    Considering they wrote ‘Garden office’ or ‘Gym’, does that change my hopes on maybe adding a bed in a few years’ time if they write something similar on my planning application?
    Many thanks, Stefan

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  99. In answer to Stefan’s query of 17 September, if this really does qualify as permitted development under Part 1, Class E in the Second Schedule to the General Permitted Development Order, the council would not be in a position to impose any conditions; the erection of the outbuilding and its use would be governed solely by the GPDO.

    The essential requirement is that the outbuilding must be “required for a purpose incidental to the enjoyment of the dwellinghouse as such” So, if anyone were to query the position, you would need to show that you have a present need for this outbuilding for the initial purpose you have mentioned. (“Required” means reasonably required, although this is a fairly easy hurdle to clear – see the case of Emin.) But the purpose of this initial use must be incidental to the residential use of the property as a whole, and this cannot include ‘primary’ residential accommodation (for example, as extra sleeping space). If it were to become clear that, in reality, you wanted the extra space for eventual use as sleeping accommodation, this might undermine your ‘reasonable requirement’ at present for the outbuilding for a purpose that is genuinely incidental to the residential use of the property as a whole.

    However, if it is genuinely required for the initial purpose you have mentioned, then if family needs change at a later date (after a year or two) then, by virtue of section 55(2)(f) of the 1990 Act, the outbuilding can thereafter be used for any domestic purpose, including any primary residential purpose, such as the provision of sleeping accommodation. However, this is subject to the proviso that the outbuilding must be use only as part of the main dwelling and not as a separate or independent dwelling. The latter would amount to development under section 55(3)(a), which would require planning permission (which, in most cases, is unlikely to be granted).

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