Friday, 19 October 2012

Extended PD rights for home-owners

One of the advantages of writing this blog and dealing with comments is that it provides me with excellent CPD! While I was taking a break from work during the past 10 days, a comment was received from ‘Toyzar78’ in response to my post of 24 September – ‘Pickles says “Sue the Council”!’. He points out that under Art. 5(13), Uncle Eric has the power to cancel or modify an Article 4(1) Direction made by an LPA at any time, in any event. Toyzar78 adds that Art. 6(3) & (4) prevents him from doing so within conservation areas and listed buildings, but he had assumed LPAs were not threatening to apply Directions solely within such locations.

This prompted me to refresh my memory of the Town & Country Planning (General Permitted Development) (Amendment) (England) Order 2010 (SI 2010 No.654). Toyzar78 is right in pointing out that the S of S has power under Art. 5(13) to make a direction cancelling or modifying an Article 4 Direction at any time before or after its confirmation by the LPA. As he points out, Art 6(3) prevents the S of S from using this power in respect of certain classes of PD in a conservation area. Art 6(4) also prevents the S of S from modifying (but not from cancelling) an Article 4 direction which relates to a listed building (if it does not relate to land of any other description). But as Toyzar78 points out, this won’t make much difference in practice.

So Uncle Eric will have the whip hand after all, and can promptly overrule any Article 4 directions which seek to remove the extended PD rights he intends to create. LPAs are obliged to give notice of Article 4 directions to DeCLoG, and cannot confirm them for 28 days or such longer period as the S of S may specify following notice of the draft Article 4 direction having been received by DeCLoG from the LPA. We can therefore expect a sort of ministerial ping-pong match with Uncle Eric lobbing the ball back over the net every time an LPA seeks to make an Article 4 direction in an attempt to remove the extended PD rights.

However, this assumes that the extended PD rights will actually be granted by an amendment to the GPDO. At the moment this seems slightly doubtful in view of the chorus of dissent with which the announcement of the government’s intentions has been greeted. However, if the proposed amendment does go ahead, some ministerial inconvenience could be avoided by modifying Articles 5 and 6 of the GPDO at the same time, so as to re-establish the requirement for ministerial confirmation of Article 4 Directions to which objections have been made.

I wouldn’t like to predict what the ultimate outcome may be, but if the government does press ahead with its intention to allow larger domestic extensions to be built (albeit for only a limited period), it seems that LPAs may not be able to thwart the government’s intentions as easily as I had originally assumed. As to the government’s timetable for this proposed change – it’s anyone’s guess. Maybe the amending Order could be laid before parliament just before the Commons rises for the Christmas recess!

[I was trying to add an update to this item, but the whole item then got lost in the system (!), and so is being reposted here. We are promised that a consultation draft should soon be published. The Planning Minister is still very bullish about this, despite mounting opposition, and says that the right to build enlarged extensions may be prolonged beyond the original three-year period and could even become permnanent.]


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