Wednesday, 31 July 2013

Welsh GPDO changes – a closer look

As regular readers of this blog will recall, Stephen Ibbitson (who takes a close interest in the GPDO and its interpretation and practical application) has contributed several guest items to this blog. Stephen has recently taken a brief look at the newly revised Welsh version of the GPDO (amending Part 1 of the Second Schedule – development in the curtilage of a dwellinghouse), and has kindly contributed this note.

Stephen Ibbitson writes:

Much of what they've drafted appears to focus on addressing some of the many wrinkles extant in The Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2008 (SI 2008 No 2362), albeit by means of some very tortuous language!

There is some good news for residents of Wales in Part 1, Class A: extensions to a side elevation which 'front' a highway are no longer entirely out of bounds as they are in the 2008 Order. The new Order (subject to other limitations) now allows a side extension to within 5 metres of a highway, or closer still (right up to, it seems) if part of the existing side elevation is nearer the highway than 5 metres, as would be the case if the existing side elevation is 'stepped'.

This will be an important provision for, e.g., end terrace houses adjacent to a highway (on a corner) and where the side wall of a rear wing (still considered to be part of the "side elevation") is set back from the main side wall. (Under the 2008 Order, the 'recess' thus formed is a no go area for PD.) This would seem to be the case even if the house is on article 1(5) land, although in those instances there is a further limit of 3 metres of depth (outwards, towards the highway) to any such extension in the 'recess' area.

Not such good news for the Welsh is that rooflights under Part 1, Class C are no longer PD on article 1(5) land. This will be a serious blow to those affected because, since Class B enlargements were already precluded on article 1(5) land, rooflights installed under Class C were the only other option. Cue lots of planning applications for rooflight insertion in conservation areas?

There are also some worrying new limitations in Part 1, Class E in respect of garden buildings. In the 2008 Order (and previous Orders) the 'height' of a garden building is to be determined by measuring from the 'highest' point of the land adjacent to the building in cases where the ground slopes. This allowed for at least some part of the garden building to exceed the nominal height limits specified. Notwithstanding Article 1(3) of the 1995 GPDO, it seems this is no longer the case in Wales: under the new Order no "part" of a garden building can exceed the height limits specified when measured from the ground level "immediately adjacent" to that "part". The same goes for the 'eaves' height of any such building: if the ground slopes, the eaves, like the overall height, will have to slope with it!

Presumably, householders living on sloping ground (I seem to recall there's quite a lot of it in Wales) will have the option of excavating into the higher ground to create usable ceiling heights, but the new Order certainly turns Article 1(3) on its head because height measurements are now to be determined from the lowest adjacent ground level where that level is not uniform.

[They do not seem actually to have amended Article 1(3) This led me to think that there would be problems, but I note that Art. 1(3) starts with the words “Unless the context otherwise requires,.....” so, in Wales, the provisions in Part 1, Class E now supersede the general rule regarding the measurement of height. MG]

So what will householders in Wales now do? They'll either have a vastly more costly job to do (excavation and disposal of the spoils) to build a modest shed, or have to submit a planning application, the latter quite likely to cost more than the shed itself!

Finally, a quick look at the tortuous language/construction used in the new Welsh Order. Consider this from Class E Interpretation:

"E.4. For the purposes of paragraphs E.1(b) and E.1(c), a part of a building, enclosure, pool or container is to be determined to extend beyond a wall referred to in those paragraphs if it would be in front of—

(a) in the case of a wall referred to in paragraph E.1(b)—

(i) that wall in its original form; or

(ii) that wall as it would exist if its original form were to have been extended, continuing the line of the wall, from each of its side edges to the boundary of the present curtilage of the dwellinghouse"

What they are trying to describe in "(ii)" above surely could be reduced to "plane", as in "...the plane of...". And what's wrong with "corner" in lieu of "side edges"? OK, using the word "plane" arguably doesn't account for 'stepped' elevations (where various elements of the elevation are other than co-planer), but then their drafting doesn't clearly account for those anyway!

In conclusion, the new Welsh Order succeeds in ironing out some of the wrinkles in SI 2008 No 2362, upon which it is clearly based---too many of which, it has to be said, arose in the first place due to a combination of sloppy drafting and laboured re-interpretation following the coming-into-force of novel terms devised for the Order.

To me, the modern Orders (post SI 1995 No 418) are about looking at what people want to do ('natural to the geometry of the existing building', utility creating designs) and trying to stop it. By contrast, the older Orders sought to address what was popular---those utility creating designs---but was clogging up the planning system, and tried to enable it.



Paul said...

This is a question for either Martin or Stephen in respect of a somewhat unusual situation we are currently find ourselves in. We have applied for permission to make some substantial alterations to our property and have been granted permission. However, in the plans that were submitted as part of the application the entirety of our 7 acres of land was edged red. We have now been informed by the Planning Officer that due to the grant of the permission this has has had the effect of designating all of the land residential curtilage. Does this mean our PD rights for outbuildings extend over all of this land?

Martin H Goodall LARTPI said...

I am afraid that the answer to Paul’s question is ‘No’. What Paul has been told by the planning offcier is wrong. As discussed elsewhere in this blog (and at some length), the curtilage of a building is not the same thing as the planning unit on which it is located.

It is slightly surprising that the Council did not query the inclusion of the whole 7-acre site in the application plan. If this was already the correct planning unit, then I suppose this is understandable, but the Court of Appeal decision in Barnett made it clear that a previously established planning unit cannot be enlarged by this means.

As regards the domestic curtilage of the house, this is bound to be a much smaller area than the 7 acres of the planning unit as a whole (if, indeed, the residential planning unit does in fact cover the whole of those 7 acres, which is itself open to doubt). To avoid repetition, I would refer Paul to the post in this blog entitled “Curtilage Confusion” and to the other related posts mentioned there.

Permitted development can only be carried out within the curtilage of the dwelling, not on other parts of the property which, although they may be in the same planning unit, are in fact outside the actual curtilage (as defined by cases such as Sinclair Lockhart’s Trustees).

Paul said...

Thank you for the guidance Martin and the very speedy response, this is extremely helpful. As a follow up to this clarification does the Planning Unit serve much useful purpose? What could we do in the 7 acres that we might not have been able to do previously?

Martin H Goodall LARTPI said...

The planning unit is important in terms of the lawful use of the land within it. This is the main reason for wishing to identify the precise extent of a planning unit.

The question would require careful consideration based on the precise facts. This is the sort of point on which Keystone Law’s planning law team would be happy to advise if we were to receive instructions in the matter.