Upward extensions – effect on amenity and external appearance

I am acutely aware that I have not posted on this blog since November. This is largely due to my current involvement in yet another writing project, of which more anon.

So to kick off anew, I am taking a quick look today at Cab Housing Ltd v SSLUHC [2022] EWHC 208 (Admin), heard jointly with two other challenges on the same points.

One of the matters requiring prior approval under Class AA in Part 1 of the Second Schedule to the GPDO is the impact of the proposed development on the amenity of any adjoining premises including overlooking, privacy and the loss of light. The claimants submitted that an LPA’s consideration of impact on amenity should be limited to effects on properties contiguous with, or abutting, the subject property and solely to those effects limited to overlooking, privacy and loss of light. The contention of the Secretary of State, in defending three appeal decisions by his Inspectors, was that this control embraces the impact upon all aspects of the amenity of neighbouring premises.

A second issue before the court was whether the LPA’s control of the external appearance of the subject dwelling is limited to the design and architectural features of its principal elevation and any side elevation fronting a highway, and whether it is further limited to the effects of those matters upon the subject dwelling itself. The claimants contended for the latter interpretation so that, in their submission, the authority is not allowed to consider the effects of external appearance upon any property outside the subject dwelling. The Secretary of State’s reply was that the control covers all aspects of the external appearance of the proposed development, and not simply the two elevations specifically referred to in paragraph AA.2(3)(a)(ii)), and also the impact upon other premises, and not simply the subject dwelling itself.

The issues in this case also affect the proper construction and ambit of permitted development rights granted by the 2015 GPDO under Classes ZA, A, AA, AB, AC and AD of Part 20. These provide for up to two storeys of multiple units of residential units to be erected on top of an existing purpose-built block of flats, or on top of detached or terraced buildings in commercial or mixed use or residential use. This issue may also impinge on Class A of Part 6, relating to the erection or extension of an agricultural building.

Holgate J set out a thorough and detailed analysis of these arguments, which (for the sake of brevity) I will refrain from rehearsing here. His conclusion was that the approach of the Inspectors to these issues was, as the Secretary of Stage had argued, a correct interpretation and application of the provisions of the GPDO. This interpretation was also consistent with the relevant provisions in the NPPF. So the decision of each Inspector was entirely lawful.

This judgement established the following points:

• In paragraph AA.2(3)(a)(i) of Part 1, “impact on amenity” is not limited to overlooking, privacy or loss of light. It means what it says.
• The phrase “adjoining premises” in that paragraph includes neighbouring premises and is not limited to premises contiguous with the subject property.
• In paragraph AA.2(3)(a)(ii) of Part 1, the “external appearance” of the dwelling house is not limited to its principal elevation and any side elevation fronting a highway, or to the design and architectural features of those elevations.
• Instead, the prior approval controls for Class AA of Part 1 include the “external appearance” of the dwelling house.
• The control of the external appearance of the dwelling house is not limited to impact on the subject property itself, but also includes impact on neighbouring premises and the locality.

© MARTIN H GOODALL