“Enlarged part of the dwellinghouse”

Part 1, Class A of the Second Schedule to the GPDO permits the enlargement, improvement or other alteration of a dwellinghouse, but paragraph A.1(e) provides that development is not permitted if the enlarged part of the dwellinghouse would extend beyond a wall which forms the principal elevation of the original dwellinghouse, or fronts a highway and forms a side elevation of the original dwellinghouse.

Subject to paragraph A.1(g),[see below], paragraph A.1(f) provides that development is not permitted by Class A if the enlarged part of the dwellinghouse would have a single storey and would extend beyond the rear wall of the original dwellinghouse by more than 4 metres in the case of a detached dwellinghouse, or 3 metres in the case of any other dwellinghouse, or would exceed 4 metres in height.

Paragraph A.1(g) (which allows larger extensions until 30th May 2019) provides that development is not permitted by Class A if the enlarged part of the dwellinghouse would have a single storey, and would extend beyond the rear wall of the original dwellinghouse by more than 8 metres in the case of a detached dwellinghouse, or 6 metres in the case of any other dwellinghouse, or would exceed 4 metres in height.

Similarly, in other cases, paragraph A.1(h) provides that development is not permitted by Class A if the enlarged part of the dwellinghouse would have more than a single storey and would extend beyond the rear wall of the original dwellinghouse by more than 3 metres, or would be within 7 metres of any boundary of the curtilage of the dwellinghouse opposite the rear wall of the dwellinghouse.

Paragraph A.1(i) provides that development is not permitted by Class A if the enlarged part of the dwellinghouse would be within 2 metres of the boundary of the curtilage of the dwellinghouse, and the height of the eaves of the enlarged part would exceed 3 metres.

Finally Paragraph A.1(j) provides that development is not permitted by Class A if the enlarged part of the dwellinghouse would extend beyond a wall forming a side elevation of the original dwellinghouse, and would exceed 4 metres in height, or would have more than a single storey, or have a width greater than half the width of the original dwellinghouse.

In the same way, paragraph A.2(b) provides that, in the case of a dwellinghouse in a conservation area, and area of outstanding natural beauty, a National Park, the Broads or a World Heritage Site, development is not permitted by Class A if the enlarged part of the dwellinghouse would extend beyond a wall forming a side elevation of the original dwellinghouse, and paragraph A.2(b) provides that, in those same areas, development is not permitted by Class A if the enlarged part of the dwellinghouse would have more than a single storey and extend beyond the rear wall of the original dwellinghouse.

In all these cases, therefore, it is necessary to determine what is meant by “the enlarged part of the dwellinghouse”, and it is also necessary in this context to understand what is meant by the original dwellinghouse.. These were the questions that the High Court had to consider in Hilton v SSCLG (CO/309/2016) in which judgment was given on 16 June.

The Hilton case arose from a planning appeal in the London Borough of Bexley [3129892] against the refusal of prior approval for a householder proposal for a larger home extension. The proposed single storey rear extension would project some 2.3 m beyond the existing rear wall of this previously extended semi-detached house. As the proposed extension, together with the existing extension, would project some 5.1m to the rear of the main rear wall of the original dwelling, the overall enlargement of the house would not exceed 6.0m. On this basis, and because the maximum height of the new extension would be around 2.8m, the appellant submitted that it would be permitted development.

The basis of the dispute between the Claimant and the LPA was that the Council maintained that even though the additional extension now proposed would have only a single storey, the enlarged part of the house would include more than a single storey, whereas the appellant contended that the enlarged part [i.e. the currently proposed extension] would have a single storey. (There was no dispute that the existing extension includes both two-storey and single-storey elements.)

In dismissing the appeal, the Inspector referred to Kensington and Chelsea RBC v SSCLG [2015] EWHC 2458 (Admin), which had examined the question of whether existing extensions are part of the enlargement of a building, and where it was held that the ‘enlarged part of the dwellinghouse’ does not include the ‘original’ building, but does include previous enlargements. The inspector therefore concluded that the proposed extension would, taken together with the existing extension, not be a single-storey enlargement to the dwellinghouse. It would not, therefore, be permitted development under the terms of Part 1 Class A.1 (g)(i) of the GPDO. Furthermore, as the enlarged part of the house would exceed 4 m in height on account of part of the existing extension having two storeys, the proposal would not be permitted development under the terms of Part 1 Class A.1 (g) (ii) of the GPDO.

Unfortunately, the transcript of the Hilton judgment is still not available, but I understand from a statement issued by Landmark Chambers that the court held that the Inspector was wrong, and that the "enlarged part" of a dwellinghouse for the purposes of Class A included only that which was currently being proposed under Class A. We shall have to await the transcript to see how the Deputy Judge distinguished the Kensington and Chelsea judgment in reaching this decision.

Another point that also remains unexplained until we have the chance to read the transcript is that this judgment is clearly at variance with DeCLoG’s Technical Guidance on “Permitted Development Rights for Householders”. This states (under “General Issues”) that :

[1] “Original”** means a building as it existed on 1 July 1948 where it was built before that date, and as it was built if built after that date, and

[2] “Enlarged part of the house” is the part(s) of a dwellinghouse comprising any enlargements of the original house, whether built under permitted development rights or following any application for planning permission, and whether the enlargement is undertaken on a single occasion or added incrementally. [In other words, the enlarged part of the dwellinghouse, so the Secretary of State says, includes cumulative extensions, in addition to the further extension currently under consideration.]

[** This is in contrast to the interpretation of “Existing” which means (according to the Technical Note) a building as it existed immediately before the permitted development (for example a house extension) is undertaken. The existing house will include previous development to the house, whether undertaken as permitted development or as development resulting from a planning permission from the local authority.]

In relation to paragraph A.1(g), the Technical Note states that from 30 May 2013 until 30 May 2019 a single-storey extension can be larger than allowed under paragraph (f) but it must not extend beyond the rear of the original house by more than 8 metres if a detached house, or by more than 6 metres in any other case. These larger extensions are subject to a prior approval procedure, whereas single-storey extensions that do not extend beyond the rear of the original house by more than 4 metres if a detached house, or by more than 3 metres in any other case, (as set out in paragraph (f) above) are not subject to a neighbour consultation scheme.

Permission to appeal to the Court of Appeal was refused by the Deputy Judge, but I do not know yet whether that application has been renewed before the Court of Appeal.

I will return to this topic in light of the transcript of the judgment when it becomes available, and in light of any further proceedings in the event of the case being taken further.

ADDENDUM: Since I posted this item on Friday, a further thought has occurred to me. It seems to me that to concentrate on the phrase “the enlarged part of the dwellinghouse” may be missing the point. Surely the wording of this provision in the GPDO by reference to the “the rear wall of the original dwellinghouse” must be the key to assessing whether or not a proposed extension is or is not permitted development under Part 1, Class A.

It matters not whether or not any previous extensions have been built or what size they were. I quoted the definition of “original” in De-CLoG’s Technical Guidance note, but the meaning of the this word is in fact defined in the GPDO itself, in Article 2(1). So this is a statutory definition. The measurement that needs to be made in order to determine whether a currently proposed extension is or is not permitted development depends entirely on how far it extends from the rear wall of the house as it existed on 1 July 1948 or, if built after that date, as first built.

Unless I have missed something (which may be revealed by the transcript of the judgment in Hilton) this would seem to be the answer to the dispute that arose in that case. If any ambiguity may possibly arise from the use of the phrase “the enlarged part of the dwellinghouse”, this could more readily be resolved by a simple amendment to the GPDO (which is due to be amended in any event in the near future), rather than resorting to the Court of Appeal in an effort to reverse the High Court decision in Hilton.

© MARTIN H GOODALL

Junior ministerial appointments at De-CLoG

Over the weekend the government announced a tranche of junior ministerial appointments after last week’s cabinet appointments.

These include:

• Gavin Barwell MP, Minister of State for Housing, Planning and Minister for London at the Department for Communities and Local Government.

• Andrew Percy MP, Parliamentary Under Secretary of State at the Department for Communities and Local Government.

• Marcus Jones MP, Parliamentary Under Secretary of State at the Department for Communities and Local Government.

• Lord Bourne of Aberystwyth, Parliamentary Under Secretary of State at the Department for Communities and Local Government and the Wales Office.

I seem to have missed out Matt Hancock M.P., as he is on one list I have seen, but not on others.

De-CLoG has not yet posted up on its website the way in which jobs within the department will be parcelled out, but no doubt this will be forthcoming shortly.

Brandon Lewis, who was Housing and Planning Minister under both Eric Pickles and Greg Clark has moved to the Home Office.

UPDATE: Gavin Barwell has been named as the junior minister responsible for planning and housing.

© MARTIN H GOODALL

Restrictive covenants again

I have previously written on two occasions about the ‘tripping hazard’ that restrictive covenants can sometimes present when development is proposed, even if the development in question has received planning permission or is permitted development under the GPDO. [For the previous articles, see Beware of restrictive covenants (Wednesday, 13 April 2011) and Restrictive Covenants (Monday, 30 January 2012)]

Another example has recently been provided by a case in the Upper Tribunal (Lands Chamber), which is more familiarly known by its old name as “the Lands Tribunal”. This was Re Hussain, 23 Bartlett Close [2016] UKUT 297 (LC) (4 July 2016).

The applicant wished to extend her two-storey house (which forms part of a self-build housing development) by the addition of a third storey. She obtained planning permission in 2008 and renewed that permission in 2013. The proposed development comprised a roof extension to provide two additional bedrooms to create a 5-bedroom family dwelling, plus the introduction of new rooflights within the roofspace and two Juliet balconies to the rear elevation of the property to serve the rear first floor bedroom. However, the applicant was prevented from implementing the planning permission by restrictive covenants that were imposed under the original conveyance of the property in 1989.

The purchasers of houses in this development had covenanted “with the Vendor and the [Bartlett Close Residents Association Limited] for the benefit of the estate and every part of it” to observe various terms and conditions, which included the following covenants:

“(5) not to enlarge or extend the house or the property otherwise than with the prior written consent of the Association and of the owners of all parts of the estate which are contiguous with the property.
(7) not to alter in any way the external appearance of the house on the Property and not to place any external ornaments on the property without the consent in writing of the Association.”
(9) no hoarding shall be erected on the property nor shall any building erection fence wall or any part of the Property be used as an advertising station or for advertising purposes of any description except for the letting or selling of the property.”

These covenants were common to all the conveyances of houses in Bartlett Close, and it was agreed by the parties that this formed a building scheme. [In other words, the covenants are mutually enforceable between neighbours.]

The applicant wished to modify covenants (5), (7) and, if necessary, (9) to allow her to implement the 2013 planning permission for the extension of No.23. She applied to the Tribunal under section 84(1) of the Law of Property Act 1925 on the ground that the covenants as originally drafted would impede the reasonable use of the land unless modified as proposed, by adding at the end of each of them the words “… except in accordance with the planning permission dated 17 September 2013 with reference PA/13/01748”, and also (or alternatively) that the proposed discharge or modification would not injure the persons entitled to the benefit of those restrictions.

In opposing the application, the residents’ association argued that the covenants secured a practical benefit of substantial value or advantage by allowing them to maintain the character and ethos of the estate under the building scheme. The architect for the scheme gave evidence about the principles behind the development. He explained the background of the scheme as a self-build housing project on derelict land purchased from the local authority. The objective was to create an intimate, high density housing development with a sense of community clustered around the focal point of St Saviour’s Church. He said that the estate had changed very little over the years and the overall pattern and integrity of the built form had remained to preserve the amenity of the residents. Those changes which had occurred comprised minor detailed elements such as the addition of porches above front doors. Three objectors who were part of the original team of self-builders who constructed it and who have lived there ever since also gave evidence to the Tribunal.

The Tribunal member noted that there is a visual unity to the buildings on the estate, which are constructed from similar materials with a common brick-type and colour and slate-covered pitched roofs. In his opinion, the design concept was skilfully achieved and the estate retains its essential design characteristics, notwithstanding some minor changes. He concluded that the restrictions, by impeding the applicant’s proposed development, do secure practical benefits of advantage to the objectors by protecting their outlook and amenity. The relevant question was whether those practical benefits were substantial [i.e. have substance]. Rather as in a planning appeal, the Tribunal’s decision on this issue was “a matter of judgment and degree”.

The Tribunal’s view was that the estate was carefully designed to maximise density whilst retaining a variety of form, height and building line; but it is a delicate balance to ensure that each house owner’s amenity and outlook is protected. In the Tribunal’s opinion the proposed extension to No.23 would jeopardise that balance in a way which would change the intimate relationship between No.23 and its neighbours into an overbearing one and it is a substantial benefit to the objectors to be able to prevent this. The estate enjoys a distinctive character and ethos which was established, and has been maintained, through the building scheme and which the residents’ association has been at pains to protect. The proposed extension of No.23 would be a material change to the physical character and form of this part of the estate and the restrictions are a practical benefit of substantial advantage to the residents’ association in maintaining that character for the benefit of the estate as whole.

The applicant had failed to satisfy the Tribunal that the grounds of the application were made out, and the application was therefore refused.

This is a further example of restrictive covenants being upheld in face of an application under section 84 of the 1925 Act, despite the grant of planning permission for the development which the applicant sought to carry out. Thus, even where an LPA is satisfied that a development is entirely acceptable in planning terms, it may still fall foul of restrictive covenants, and it cannot be assumed that the Lands Tribunal will necessarily be persuaded that such covenants should be relaxed in order to enable the consented development to be carried out.

© MARTIN H GOODALL

Changing the guard at De-CLoG

Greg Clark, who has been Secretary of State for Communities and Local Government since May 2015 has moved to be the new Secretary of State for Business, Energy and Industrial Strategy.

His replacement at De-CLoG is Sajid Javid, who was previously Business Secretary. So this is a straight jobs-swap between Clark and Javid.

We shan’t learn until tomorrow or Monday whether Brandon Lewis will stay as Housing and Planning Minister or whether he will also be moving to pastures new.

Theresa May has repeated twice in the past week that building more housing is a priority for her government, and so this will be the major policy objective on which De-CLoG will be expected to deliver. It remains to be seen whether there will be any dramatic new housing initiatives, or whether De-CLoG will simply redouble its previous efforts to promote housing in a variety of ways.

Clearly the residential conversion of offices, which has been facilitated by the permitted development rights included in the GPDO since 2013, will have a part to play in this, and it can be expected that De-CLoG will press on with their previously announced intention of extending Class O to enable the demolition and replacement of office buildings as permitted development (subject to an appropriately beefed-up prior approval process, for which the necessary statutory power was incorporated in the Housing and Planning Act).

Expect some bland announcement soon on all the wonderful things De-CLoG will be doing, but look out for further indications from Downing Street as to what our new PM expects the planning system to deliver.

© MARTIN H GOODALL

Is Brexit inevitable?

Despite an occasional urge to blog on topics outside the scope of planning law and practice, I have always resisted such temptations – until now. However, I feel so strongly about the subject on which I am writing today that I will make this a one-off exception to my usual rule.

Few, if any, of the benefits that the charlatans running the Brexit campaign were promising to gullible voters would be forthcoming if we were to leave the EU. The money that would allegedly be ‘clawed back’ from Europe, would be a good deal less in net terms than some of the figures being bandied about by the Brexiteers, and is very unlikely to reach the NHS, or match the EU support currently paid to farmers, or to replace the structural funds currently paid by the EU to deprived areas. As for immigration, even if we were no longer to be in the EU, net in-migration is likely to be every bit as high as it is now, and the promised ‘control’ of our borders may prove to be illusory.

As for red-tape and EU bureaucracy, there is a widespread consensus that nearly all of the rules that have been made in compliance with EU law would in practice have to be retained in our legislation, because the interests that they protect would need to be protected whether or not we were an EU member. Even fishing quotas are unlikely to change. So all those people who rejoiced last Friday that “we’ve got our country back” had been badly misled, both in believing that we had somehow lost our independence in the first place and in thinking that we would in practice have any greater freedom of action as non-members of the EU than we have now.

Like quite a few other people I know, I feel so upset by the European referendum result, and its disastrous consequences for this country, that I cannot accept this outcome, and feel that we must find some way of reversing last Thursday’s decision. I believe strongly in parliamentary democracy. Referenda, on the other hand, do not represent genuine democracy and are far too prone to be swayed by demagoguery, as was all too apparent in the case of last week’s referendum. I do not accept for one moment that it is ‘undemocratic’ to seek to overturn the result of that referendum, so as to ensure our continued full membership of the EU. In the end, it must be parliament that decides. [And in case anyone believes that MPs are there simply to give effect to the wishes of their constituents, I suggest they should re-read Edmund Burke’s classic Address to the Electors of Bristol.]

I was interested to see that there are other lawyers who are thinking on the same lines as me. The first point that should be clearly understood is that the result of last week’s referendum is not binding in any way. It has no legal status, and does not oblige the government or parliament to give effect to its outcome. Secondly, eminent constitutional experts have pointed out that Article 50 of the Lisbon Treaty can only lawfully be invoked by an Act of Parliament. The royal prerogative that ministers exercise on behalf of the Crown, which includes (at least nominally) the power to make treaties and to declare war, does not extend to the formal procedure for leaving the EU, because our membership of the EU is enshrined in our primary legislation, and an amending Act would therefore be required to start the process leading to the UK’s departure from the EU.

The government was very wise not to seek to invoke Article 50 for the time being, and it is clearly very much in our interests to delay doing so for a number of reasons, not least to allow for the possibility of a change of mind that might avoid the Article 50 procedure having to be invoked at all. Michael Zander QC (Emeritus professor of law at the London School of Economics), in a letter to The Times, has suggested that if the mood of the country towards Brexit has changed by the time the government seeks to invoke Article 50 of the Lisbon Treaty, MPs would have “a constitutional right, even a duty”, to refuse to give the will of the people effect. I entirely concur with that view.

[I really don’t propose to permit myself any further digressions from planning law in this blog, and I shall similarly limit discussion in the comments section below. As the French say - Retournons à nos moutons.]

© MARTIN H GOODALL