Tuesday, 14 May 2013

Larger domestic extensions – some further thoughts


Following my latest post, Anthony Gilbert wrote to me to query the position regarding the plan that must be submitted under paragraph A(4)(2)(b). How is the word "plan" (in the singular) to be interpreted in this context? How detailed does it need to be, and to what scale should it be drawn? Would a sketch plan suffice, or would it have to be accurately drawn to scale by a draughtsman or with CAD?

The issue as to the scale and accuracy of the plan could be a bone of contention in some cases, but I suggest that LPAs will in practice have very little room for manoeuvre. Paragraph A.4(2)(b) requires that the developer must provide “a plan indicating the site and showing the proposed development”. I do not consider that the LPA could demand that the plan be drawn to any particular scale or even that it should be on an OS base, so long as it indicates the site with sufficient clarity to enable it to be correctly identified and shows where the proposed extension is to be located. Nor can the LPA demand more than one copy of this information; if they want more copies they will have to copy them for themselves.

The actual dimensions of the proposed extension are required to be stated in writing [paragraph A.4(2)(a)], so precise accuracy of the delineation of the extension on the plan may not be critical, although there could possibly be an issue as to the distance of the extension from a neighbour’s boundary. The provisions of paragraph A.4(9) should also be borne in mind. This requires that the development must be carried out in accordance with the details approved by the LPA (where there has been a neighbour objection) or in accordance with the information provided under paragraph A.4(2) (where there has been no objection). So the plan supplied under paragraph A.4(2) will have to be sufficiently accurate to enable compliance with the requirements of paragraph A.4(9) to be verified in the case of any subsequent dispute.

Section 62 of the 1990 Act and the corresponding provisions of the DMPO will not apply to the prior notification made under the GPDO, and so there can be no question of the LPA refusing to ‘register’ it or seeking to impose any conditions or requirements for its ‘validation’. Only if the material supplied by the developer really is insufficient to comply with the fairly simple requirements of the condition set out in paragraph A.4(2) could this be treated as not being prior notification for the purposes of these provisions. It would be somewhat risky for an LPA to take such a view, as it might well turn out that the information supplied did comply with paragraph A.4(2), in which case the developer would be entitled to proceed with the extension on the expiry of the 42-day period.

It should also be noted that the LPA can only request additional information under paragraph A.4(6) in the event of a neighbour objection being made. If no objection is received, no consideration of the impact on the amenity of adjoining premises is needed, and so the possibility of the LPA requiring further information cannot arise. In those circumstances, the developer will be entitled to proceed on the basis of the information originally supplied, without requiring the prior approval of the LPA.

It did occur to me to wonder what the position would be if the LPA fails for any reason to notify the neighbours as required by paragraph A.4(3). I rapidly came to the conclusion that this is solely the LPA’s problem. If the developer has complied with the rules, they will be entitled to proceed with their extension after 42 days in the absence of any neighbour objection (even if this is the result of some administrative failure on the part of the LPA). The only remedy for a neighbour in that event would be a complaint of maladministration. The development itself could not be prevented in those circumstances.

It should be remembered that the philosophy behind these new rules is that this whole regulatory procedure should be ‘light touch’. I would expect LPAs to get short shrift from the Planning Inspectorate and from the courts if they are heavy-handed in the way they deal with these procedures.

I have received a second query, from Val Jacobi . She asks how anyone can now apply (under section 192) for a certificate of lawfulness for a rear extension using the new limits, because the lawfulness of the development will depend on compliance with the prior notification procedure. I entirely agree, and it seems to me that a CLOPUD cannot be granted in these circumstances.

On the other hand, if the prior notification procedure has been completed, and either there has been no objection or the proposal has been approved following a neighbour objection, it will clearly be lawful for the developer (or a successor in title) to proceed with the extension at any time in the future, provided it is completed no later than 30 May 2016. It is difficult to envisage circumstances in which an owner would subsequently think it necessary to obtain a lawful development certificate for such an extension (unless perhaps they were a later purchaser who is unsure that there has been compliance with the conditions in paragraph A.4), but there would seem to be nothing to prevent a certificate being granted if the prior notification procedure has been correctly followed.

Val also asks what the position would be if a neighbour at the time of the original proposal moves away before the work commences. The new neighbour might not like it, but if the prior notification procedure has been completed, there will be nothing they can do about it, and the extension can go ahead. There will certainly be no legal requirement for the LPA to consult the new neighbour unless they move in early enough to enable the LPA to give them 21 days’ notice within the original 42-day period and still issue a decision within that period. However, if the LPA has already given notice to the neighbour who was there when the developer’s notification was received, I don’t think the LPA would be under any obligation to send out a second notice to a new neighbour moving in a few days or weeks later. On the other hand, if there is time to do so, the LPA might take this step if they think it appropriate.

© MARTIN H GOODALL
_________

UPDATE: See the comments appended to this item for further clarification and discussion of points arising in connection with these new rules.

19 comments:

Anonymous said...

I've searched for case law for a ploy I've come across twice lately. This post gives a really interesting commentary of some of the issues around it, but was wondering if you, or anybody, has any thoughts on the problem.

In both instances the developer has understood that their proposed extension is too large to comply with policy, (be it parking, access to sunlight, or any other consideration) and has split the proposal into two separate applications. For example, one loft flat extension in application A and one rear flat extension in application B.

Common sense dictates that this is nonsense. Since the development is to be built as one, the impacts should be measured as a whole.

However, I have been frustrated in my attempts to find any definitive case law covering this, and have been told by a council lawyer that there is nothing to stop people doing this!

H

Simon said...

Martin

I do not necessarily agree with you on the need or otherwise for a subsequent Certificate.

A decsion by the LPA either to grant Prior Approval (if objections received) or that Prior Approval is not required is not the same as saying that the proposed development is lawful. As you have said the information that is required to be submitted is minimal. On the basis of the minimal information submitted, the LPA would be unable to determine (at least at the outset) whether:
- the property is a single dwelling
- the property has permitted development rights removed by virtue of conditions or Art4
- the total amount of curtilage covered by buildings
- if the extension is only to the rear of the original building
- the existing eaves height of the building
- whether materials are matching

It would be up to the person undertaking the works to ensure that all the other pd requirements are met, or else they may want a certificate - but they cannot obtain the certificate until after the prior approval process. So much for speeding up/simplifying the system.

Martin H Goodall LARTPI said...

In response to H, my view (like that of the council lawyer quoted in H’s comment) is that there is nothing to stop an applicant doing this. However, most planning officers are alert to attempts at the ‘salami slicing’ of development proposals, and will look at the cumulative impact of the proposals, measured against various policy considerations as well as their practical impact. If the applicant makes one application, waits for it to be approved and then puts in the second application, there is a distinct possibility that the second application might be refused when it is considered in relation to its cumulative impact in combination with the previously approved extension. Ultimately, it comes down to a question of planning judgment.

Anonymous said...

This already is sounding like a nightmare.

I had a couple visit me yesterday for advice on buying a farm and turning the barns etc into dwellings, commercial uses, restaurant, hospitality amongst other things (including a small amount of farming!).

I referred them to the soon to be enacted regs, particularly Part 3Class M. Will you be making some commentary on this section at some point? As far as I could see, it only allows change of use and the barns in question would no doubt require substantial rebuilding (being pole barns), which I suggested might not be covered. One wonders what the use of Class M is if you will need planning permission anyway for such building works, which will likely be the case most of the time?

Martin H Goodall LARTPI said...

I will certainly be commenting on the other changes made by the amendment order in a future post, although it may take me a few days before I have time to do this. The amendment order introduces some quite important changes, but they are hedged around with tricky limitations and conditions. If planning professionals have difficulty in getting their heads around the GPDO (as we frequently do), I sometimes wonder what on earth the average lay person makes of it all!

Anonymous said...

Id disagree with some of your comments on the level of information required.

2.b requires a plan to be submitted, 6 allows the lpa to request additonal information.

Imagine a situation where the ground levels fall to the rear of the site. Conventinon is that height is taken from the highest ground level, but the impact on neighbour amenity would be greatest from the end height. The lpa in that situation would require elevations showing ground level changes in order to assess amenity impact.

Martin H Goodall LARTPI said...

In reply to this latest comment, the LPA cannot ask at the outset for anything more than is provided for by paragraph A.4(2). Levels are not mentioned, but the maximum height has to be stated, and the extension as built cannot exceed this. No doubt the usual measurement convention will apply. However, if there is a neighbour objection, then the additional information the LPA could ask for might well include levels.

The power that paragraph A.4(6) gives to the LPA to require the developer to submit such further information regarding the proposed development as they may reasonably require in order to consider the impact of the proposed development on the amenity of any adjoining premises, does not arise unless a neighbour objection has been received, which then triggers the requirement [under paragraph A.4(5)] for the prior approval of the LPA as to the impact of the proposed development on the amenity of any adjoining premises. The LPA has no power to do anything in the absence of an objection. No issue as to the impact of the proposed development on the amenity of any adjoining premises arises in the absence of any neighbour objection.

Anonymous said...

Further to Martin's final paragraph and Val's comments, I think that the opinion of a new neighbour would be trivial. This is because the prior notification procedure is concerned with the impact of the proposal - not the fact an objection had/had not been made to a prior notification. If an objection had been made, the LPA would have assessed the impact for themselves and allowed or denied the development accordingly. That conclusion is unlikely to be altered by a different neighbour occupying a property. The scenario of did or didn't object (thus allowing the LPA to make an assessment or not) would also so little to change this conclusion, in so far that in the absence of an objection the impact must be acceptable.

Bjc Bjc said...

I am assuming that councils can't add conditions to the PA not required, or PA given notices. So there could be a scenario where a developer shows non opening and obscure glazed windows to respond to an amenity issue. And as long as they complete as per their description, there is nothing to stop them (or a future occupier) changing to opening and clear glazed windows, and the LPA could do nothing. Is this right?

Martin H Goodall LARTPI said...

In answer to ‘Bjc Bjc’, I think that is right. No doubt it is all part of the government’s ‘light touch’ approach to this issue. Alternatively (and perhaps more probably) they just didn’t think this through. The LPA has no power to intervene in any way if there is no neighbour objection. If there is an objection, the LPA must either give prior approval to the extension or refuse it. There is no power to impose conditions on permitted development.

Anonymous said...

Unless I've missed something, it says that the developer may not start until the end of the 42 days, but does not say that the LPA may not subsequently refuse prior approval of it, even if the development has started.

Also it doesn't say that neighbour objections coming in after 21 days have to be ignored.

It states that(if there is a neighbour objection to the "proposed" development) the LPA's prior approval is required. That seems to mean required. It does not state that their approval is given by default after 42 days or any other period.

I think a developer who starts without having the positive prior approval sign-off from the LPA is running a considerable risk.

Unless of course there are either no neighbours, or the developer is confident they won't object, at least until he has started, when it presumably wouldn't be a "proposed" development any more.

Martin H Goodall LARTPI said...

I am afraid I have to disagree with the suggestion that prior approval can be refused outside the42 day period. If the LPA does not either grant or refuse their prior approval (following a neighbour objection) within that period, then the extension automatically becomes permitted development, and the LPA is then powerless to prevent it. It is the LPA that is at risk if they do not give notice of their decision to the applicant within 42 days. An aggrieved neighbour might well have a legitimate complaint of maladministration in such circumstances

Martin H Goodall LARTPI said...

A further point which I did not cover in my response to the previous comment relates to the 21-day notice period to neighbours. In this case, 21 days is the minimum period of notice the LPA can give to neighbours; they can give longer if they want to, and I agree that there does not appear to be anything to prevent the LPA taking account of neighbour objections received outside the period stipulated for the receipt of neighbour representations by the LPA.

BUT (and this is the important point) - the 42-day period is absolute, and it runs from the receipt by the LPA of the original notice seeking prior approval. As I pointed out in my original post, an LPA that fails to get on with it or gives significantly more than 21 days to neighbours in which to object will be at serious risk of running out of time. I repeat – once the 42-day period has expired without the LPA having notified the developer that they either grant or refuse their prior approval of the extension, the developer is entitled to erect it, no matter what representations the neighbours might make to the LPA after that date, and no matter what the LPA might purport to do after that date.

If the LPA were to give the neighbours a period within which to object which expired after the end of the 42-day period, this could not prevent or delay the construction of the extension after the expiry of the 42-day period. In the absence of any neighbour objection, the LPA cannot purport to refuse approval. Any neighbour objection outside the 42-day period will be of no effect.

For the avoidance of doubt, once the 42-day period has expired without notification of a decision being given by the LPA, the extension can be built at any time thereafter, provided it is completed no later than 30 May 2016. Thus even if, as a result of a late objection from a neighbour, an LPA purports to refuse their prior approval outside the 42-day period, the subsequent erection of the extension cannot be prevented even though no steps may have been taken to commence its construction before the LPA seeks to refuse the application.

There are two circumstances in which the extension can be begun before the expiry of the 42-period. First, The development can be begun as soon as the developer has received from the LPA a written notice that their prior approval is not required. Alternatively, the development can be begun as soon as the developer has received from the LPA written notice giving their prior approval. Either of these events could occur within the 42-day period. If there is no neighbour objection within the time stipulated by the LPA for the receipt of representations, they ought to notify the developer promptly that their prior approval is not required. If they fail to do so, this could conceivably be grounds for a complaint of maladministration on the part of the developer, if the developer is anxious to proceed with the development without delay. But in the absence of any such notification, the 42-day deadline will take effect in any event.

Anonymous said...

We now have a number of these in play, and one is a resubmission of a scheme refused by the council and upheld on appeal. However, affected adjoining premises did not object before and we would assume will not object now. But there is a twist in that we consider the proposed extension does not meet other of the 'pd' tests. So it looks like we will go through the PA process and (if no objection)could say that PA is not required, but that planning permsiion is required.
So if an application is made, does the 'PA not required' have any weight, or are we back to s38 and the Development Plan?.

Martin H Goodall LARTPI said...

I suggest that in a case like the one predicated in this most recent comment, the LPA should in addition to notifying the applicant that there have been no neighbour objections and that prior approval under the GPDO is not required, make it very clear at the same time that in the council’s opinion the proposal is not in fact permitted development and that its execution without planning permission would be a breach of planning control that could lead to enforcement action being taken.

As I have previously pointed out in these pages, in relation to agricultural development under Part 6, a prior notification cannot make the proposal permitted development if it does not in fact meet the statutory criteria. On the other hand, an LPA should not ignore such an application but should respond appropriately to the prior notification application within the time limit whilst also making the need for planning permission absolutely clear.

Chris said...

One thing my authority wrestled with as we prepared for the PD changes coming into force was whether we could require the developer to submit further information regardless of whether any neighbour had objected or not.
If, as you've suggested in your posts, prior approval will only be required where a neighbour objects, doesn't that open the door to threats or intimidation being employed to stop neighbours objecting? Or, could we not read A.4(6) to mean that consideration of 'the impact of the proposed development on the amenity of any adjoining premises' should be given whether neighbours object or not?
The latter seems a reasonable approach, because it balances the interests of all parties and guards against scenarios where neighbours have been cowed into silence. But I'm worried that it's a possibility that simply hasn't been thought of...

Martin H Goodall LARTPI said...

I have been away for a short break, hence the slight delay in Chris’s comment appearing here.

I would be a little sceptical as to threats or intimidation being employed to stop neighbours objecting. However, as I read the amendment order, Paragraph A.4(6) is entirely dependent on the prior approval procedure being brought into effect by Paragraph A.(5), which provides that “where any owner or occupier of any adjoining premises objects to the proposed development, the prior approval of the local planning authority is required as to the impact of the proposed development on the amenity of any adjoining premises”. Absent such an objection, there is nothing to approve – the permitted development right is automatic, and the LPA has no power to intervene in any way. Admittedly the drafting is not as clear as it might be, but in light of Paragraph A4(5) there seems to me to be no scope for arguing that, in the absence of any neighbour objection, the LPA could in any event require the developer to submit further information regarding the proposed development or that they could then purport to consider the impact of the proposed development on the amenity of any adjoining premises.

Anonymous said...

One issue that has just started to appear relates to applications made for planning permission as a HouseHolder application (post 30th May 2013), which could be treated under the Prior Approval process. There are two schools of thought. One is that we should determine the application in the usual way, as the applicant has chosen to make an application rather than use the PA process (and I have heard agents say that they don’t think that a notification letter under this process has the same weight as a Notice of Decision). This is on the assumption that it is legal to determine the application in this way,even though there might be an alternative process.
The other is that we send the application back, saying it needs to be dealt with under the PA process.
Or is the middle ground that we just tell the applicant that the proposed development could be considered through the prior approval process, and let them decide which process they want.

Martin H Goodall LARTPI said...

It appears to me that a householder could make a full planning application if they prefer to do so. Whilst the LPA might, as a matter of courtesy, point out to them that an alternative procedure is available under the GPDO, the applicant is entitled to have their application for planning permission determined if that is what they prefer. There is nothing preventing someone applying for a planning permission that they do not actually need, although an LPA may find that the developer could in practice ignore any conditions attached to such a permission (see the House of Lords decision in Newbury DC v. SSE [1981] AC 578).