Sunday, 12 May 2013

Larger domestic extensions – the new rules

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



Joan said...

So should one still do a cert of lawfulness for the rest of the development.
The practise of conveyancing solicitors is to ask to prove extension is PD. That is easiest way to do that.
Plus doing construction/B reg drawings anyway?
How does this help other than open way of cowboy builders?

Martin H Goodall LARTPI said...

I am not sure that I entirely understand Joan’s question. If one is involved in a conveyancing transaction there simply won’t be time to apply for a Lawful Development Certificate, and I don’t understand what is meant by “the rest of the development”.

If an extension or alteration to a house is claimed to be Permitted Development, its lawfulness will depend on its falling within the description of development authorised by Part 1, Class A of the Second Schedule to the GPDO, to its being within the limitations laid down in that class and to its complying with the conditions applying to that class. Failure to comply with any one of those requirements will mean that it is not Permitted Development, and it will require planning permission.

In the case of the larger extensions that will be possible under Part 1, Class A after 30 May, their lawfulness will depend (among other things) on precise compliance with all the requirements of the prior notification procedure.

Joan is right to point out that there will be a need to comply with the Building Regulations, and that drawings will be needed for that purpose in any event.

RW said...

A very informative post, thanks very much.

I note that you say 'although it is not spelt out in clear terms, the LPA clearly cannot require such further information [full plans etc] in the absence of any objection having been recieved with the specified period'. Given the issues you point out in terms of the timeliness of decision making, it might be advantageous both for the applicant and the LPA for a requirement for plans to form part of an LPA's application validation lists.

Perhaps a novice question, but on what basis is an LPA not able to require full plans at the point of application as you suggest?

Martin H Goodall LARTPI said...

In response to RW - As I read the new rules, these prior notifications are not to be treated as though they were planning applications, and so ‘validation’ of the prior notification is not required, and there can certainly be no question of the council’s local validation checklist being applied in such circumstances. If they start quibbling over ‘validating’ or ‘registering’ the prior notification, the LPA would be in danger of running out of time under the 42-day time limit.

The information required to accompany the prior notification is clearly set out in paragraph A.4(2). The council cannot at that stage ask for any other information beyond this. However, as I suggested in the post above, the developer could volunteer extra information at the outset if they thought it might help their case in the event of a neighbour objection being received. But it is only if the council does receive a neighbour objection that they can then ask for additional information. As I have indicated, it will in practice be difficult for an LPA to obtain and consider additional information in these circumstances and still meet the 42-day deadline.

Mike said...

"the development must be completed on or before 30th May 2016"

Well, if for no other reason, I shall advise clients to ignore this PD process and submit a full planning application as before. For the sake of £172 there's no reason not to. It might be okay this year to ignore the "must be completed" but by next year it would be dangerous to proceed on that basis - especially for a sel-builder. These things very rarely commence until months after approval and can drag on for ages. Most extensions of this size will probably be over 4m high anyway. Whole thing is nonsense.

Sue said...

An interesting article. The problem with the planning application route in our area is that the larger extension proposed would in most cases be refused as it would not comply with the local development plan. It would not comply with that permissible under the Permitted Development regulations as it would be too large and therefore the Large Extension application is the only way such an extension of this size would be approved. It is important to emphasise to clients that they must complete the building of the extension by the 30 May 2016 and notify the planning department accordingly.

Maxwell said...

What chance this 3 year trial becoming a permanent feature? A few of my clients have found it very useful and neighbours have not objected. (Though it does seem to be a process almost designed to cause bad neighbourly relations).

LPAs seem to hate it as can subvert their policies (or power?!), but then many officers seem to hate PDRs generally (e.g. large dormers) for the same reason.

I've had several experiences where LPAs have acted 'oddly' - demanding plans before verifying/accepting, consulting neighbours not adjacent, not consulting neighbours that are adjacent, giving conflicting written advice about salami-ing/combining/piggy-backing with other permissions... chaos.

If only the mother of parliaments could spend a little more on drafting competent legislation, then everyone else might not have to waste so much time and money arguing over the legal mess in subsequent years.

Ah well, at least it's boosting the legal services economy, not just construction :)

passerby said...

Joan's comment could simply have read 'Given that a scheme is 'accepted' (is that the right word) under the Prior Approval process, should one still seek a Lawful Development Certificate for that work?

The advice provided by local authority websites ('yes') contradicts advice given to me informally by one Duty Planner.

But for the purposes of *future" conveyancy, and general peace of mind - and given the modest costs involved - I think the answer is 'yes'.

Martin H Goodall LARTPI said...

I would not consider a Lawful Development Certificate necessary unless there really is an element of uncertainty (or dispute) as to the lawfulness of the proposed development.

passerby said...

Does the phrase "there is no requirement to have regard to the Development Plan" imply that the LPA could choose to regard it if they so wished? That would appear to be contrary to the spirit of the amendment.

Also, has anything changed in regard to this amendment since this article was written - other than the fact that the completion date has shifted to 30th May 2019?

Martin H Goodall LARTPI said...

In answer to “passer-by” (21 April), there is no requirement that the LPA must have regard to the development plan in determining a prior approval application under Part 1, and so section 38(6) of the Planning and Compulsory Purchase Act 2004 does not apply.

Relevant parts of the development plan are nevertheless capable (in principle) of being material considerations, as confirmed (in relation to advertisement control) by J C Decaux Ltd v FSS [2003] EWHC 407 (Admin). The absence of a requirement to have regard to the development plan does not mean that planning policies, whether statutory or non-statutory, are irrelevant. Provided the policies in question are concerned with the one issue that has to be con¬sidered here (i.e. where any owner or occupier of any adjoining premises objects to the proposed development, as to the impact of the proposed development on the amenity of any adjoining premises), they are as a matter of law capable of being material considerations in relation to that specified issue for the purposes of determining an application.

However, the extent to which the provisions of the development plan may be relevant to the determination of the application is clearly limited to those that relate to this single specified issue. It is clear that other considerations that might be taken into account in the determination of a planning application cannot be brought into the equation in the case of a prior approval application under Part 1.

The only change to Part 1 made by this first amendment order is in Class A, consisting of a slight tweaking of of paragraph A.1(h)(ii) to read “(ii) be within 7 metres of any boundary of the curtilage of the dwellinghouse being enlarged which is opposite the rear wall of that dwellinghouse”. This simply removes a possible ambiguity in the original wording.

(The extension of the 2016 deadline for larger domestic extensions to 30 May 2019 was brought about by the GPDO 2015.)