Friday, 26 April 2013

The domestic extensions fiasco


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

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

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

STEPHEN IBBITSON writes:

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

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

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

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

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

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

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

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

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

So to the questions -

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

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

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

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

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

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

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

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

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

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

© STEPHEN IBBITSON

6 comments:

Evan Owen - Snowdonia said...

As someone who has clients in Wales as well as England the question of why the WG planners haven't adopted the torrent of English changes is a moot point. Boy is it confusing, in both camps there are useful bits and pieces that don't apply outside the administrative areas but we don't know the reasoning behind it. I personally can't see why PD for extensions needs to be so complicated. In some US zones the rules are plain and simple.

I hope and pray that the Wales Planning Act will simplify planning for ordinary folk, this English system is far too cumbersome, however I won't be holding my breath in anticipation because too many empires and jobs rely upon the complexity being maintained, mine included. One thing we can be sure of is a radical reduction in the number of LPAs in Wales. That should make regional planning strategy easier to implement.

Anonymous said...

And what with the introduction of penalty on-the-spot fines for unauthorised development (can't wait to see how that pans out!) it's all part of the Big Society (BIG BROTHER) Orwellian New World Order (Localism my backside!)...

On another note though, it's all very well having a pop at Uncle Eric and the boys (not to mention the Chief Planning Officer, Mr Q who must also be having a hand in all this)... So, how about the extremely bright but disaffected protagonists actually coming up with a 'common man's (or should that be 'persons') answer to the PD conundrum? for heavens sake surely we can do better than smugly snipe away at DCloG and the gang day after day! But we don't really want to do that do we? after all there's money to be made from the hapless 'victims' or should that be 'perpetrators' of these heinous criminal acts of unauthorised development - off with their heads I say and be done with it! Got to be anon I'm afraid (sorry).

Martin H Goodall LARTPI said...

The ‘instant fines’ proposal is contained in a Private Member’s Bill recently introduced in the Commons under the 10-Minute Rule. It stands no chance of getting anywhere, so I don’t think we need lose any sleep over it.

I would dearly like to have a go at re-drafting the principal Act and some of the more frequently used subordinate legislation, such as the GPDO, but this would be an inordinately time-consuming exercise. I simply don’t have that sort of time to spare myself, and I imagine the same goes for most other planning professionals. If the government would be prepared to pay us to do it, then it might be feasible, but only if they were to pay realistic fees. (Pause for hollow laughter).

It gives me no pleasure that I make my living from sorting out planning problems for people who should not be having such problems in the first place if only we had a simple, straightforward planning system. In an ideal world, I’d be out of work. But as we all know, this world is far from ideal, and our planning system is a ghastly mess. Unfortunately, as this latest nonsense over domestic extensions demonstrates all too well, it is just going to go on getting worse!

Anonymous said...

Agree with most of the post, save for the comments on LPA's wanting to limit PD rights to increase fee income. The fee for a householder application is £172. The cost of processing an application is typically at least twice this amount. LPA's make no money from processing householder applications. Indeed, householder applications are effectively subsidized by developers. And one trainee or graduate planner can churn out hundreds of householder decisions, so it's not as if you would end up with a particularly substantial empire by removing or limiting PD rights!

Lawrence Silverman said...

I was involved with planning in Berkshire CC, Reading BC and SE England for thirty years as a councillor. In that time I came to regard planning officers as a bunch of control freaks who didn't want anyone to be allowed to do anything with their own homes without their say-so, which would be given only as a concession. They would often raise objections of their own even when there were no objections from neighbours. That was as regards individuals. It was a different matter when it cam to developers(for reasons too disreputable to mention).
One thing that particularly disturbs me regarding PDd is that some councils seem to regard the limits of permitted development (ie without the need for express consent) to be grounds for refusing consent absolutely, which makes applying for permission pointless, thus defeating the intention of the law. Can that be right, or even lawful?
As regards your question to householder and neighbour. Shouldn't the wishes of the first have priority over the second?
L

Mark O'Sullivan said...

It all reminds one of the great debates over Part II of Schedule 8 to the 1971 Act [compensation for refusal of permission for various minor developments which had been allowed pre-1947] – which got repealed in the end.