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.

© MARTIN H GOODALL