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.