Wednesday, 24 April 2013

Domestic extensions – a messy U-turn

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

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

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

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

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

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

(iii) that period has ended, and

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

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

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

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

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

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

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

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

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

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

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

What a way to run a planning system!



  1. Indeed. I don't know whether to laugh or to cry...

  2. Anthony Gilbert has sent in the following comment in response to this post:

    “Your post neatly highlights the complete mess this revision to the GPDO has become.

    There are the obvious red-tape aspects, but there are of course other objections

    Contrary to the Government's aim of making the development control system open and 'fair', it will have the opposite effect. It defeats the object of having 'permitted development' if it is only going to be permitted on the neighbour's say so. Far from empowering neighbours in the development process, it could set neighbour against neighbour to a greater extent than the present system. It will bring personal issues to the fore and increase the arbitrariness of the process. At least with the present system, both developers and neighbours know where they stand.

    If this system applies only to extensions above 3m/4m, it will have introduced further complexity into the system. If it applies to all Class A development, I suspect we will have fewer domestic extensions rather than more.

    If enacted on the lines that Pickles has stated, it could well thwart the Government's aim of stimulating domestic-extension building. Had ministers simply increased the extension limits to, say, 4m/5m in the first place, then this would probably have achieved a better outcome.”

    Needless to say, I entirely agree with the views Anthony has expressed.

  3. I always follow the doctrine that when you find yourself in a hole ... stop digging.

  4. A total and utter foxtrot uniform!


  5. Indeed it is odd that this was included in the Bill when the GPDO could just have been amended. But it's so much more impressive to have some top tier legislation on something.

    David Brock

  6. This has generated some interest amongst our agent community, and I have been asked the question about a scheme that is now ready to go, but which would be 'pd' under the new rules (as long as there were no objections), so should the client be advised to wait until the change has been made.

    Any thoughts on how long it might be for this to be implemented?

  7. I have no idea how long it may take De-CLoG to get around to laying the proposed amendment to the GPDO before parliament. The government wanted it to be in place by “the Spring”, but that is a very elastic term and, bearing in mind the propensity for government timetables to slip, late May or even June strikes me as entirely possible.

    In the case of the development mentioned above, if one can be confident that this development will not give rise to any neighbour objections, then one might as well wait until it becomes PD and make use of the new prior notification procedure.

    Even if there are neighbour objections, it appears that determination of the matter by the LPA (possibly by officers under delegated powers, although it could go to committee) might still result in a consent, if the council can be persuaded that in practice there is likely to be no significant detriment to the residential amenity of neighbours. In other words, it should not be assumed that neighbour objections will necessarily lead to a refusal.

    If, on the other hand, time is of the essence, and especially if objections are likely to be forthcoming from neighbours, a planning application could be made now and dealt with in the usual way, although this will obviously involve the payment of a full application fee and compliance with all the validation requirements associated with a full planning application. A planning application would also be subject to the full range of material considerations, whereas it seems that the residential amenity of neighbours may be the only material consideration to be taken into account under the new GPDO procedure.