Ghastly extensions

I suppose I’d better summarise the remaining new PD rights for extensions to existing buildings that come into effect next week (on 31 August) although, as you may already have gathered, I am distinctly unenthusiastic about them, as are many other planning professionals. These new PD rights comprise Class AA in Part 1, and Classes AA, AB, AC and AD in Part 20 of the Second Schedule to the GPDO. They were introduced by The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 (SI 2020 No.755).

[There have already had to be some corrections to the provisions to Class A of Part 20. I don’t propose to discuss these here. They can be found in Article 4(2) of the No.2 amendment order.]

In brief, the additional PD rights are as follows:

Part 1

AA - Construction of an extension of up to two extra storeys on an existing dwellinghouse comprising two storeys or more, or one extra storey on a bungalow.

Part 20

AA - Construction of up to two extra storeys of flats [number unspecified, and therefore apparently unlimited] immediately above existing premises that are not less than three storeys in height used within Use Classes A1* (shops), A2* (financial and professional services), Class A3* (restaurants and cafes), Class B1(a)* (offices) or as a betting office, pay day loan shop or launderette, or which are in mixed use as a dwellinghouse or dwellinghouses (Class C3) together with one of those uses. [*These commercial Use Classes continue to apply for the purposes of the GPDO, notwithstanding their abolition and replacement by Class E in the UCO.]

AB - Construction of up to two extra storeys of flats [number again unspecified, and therefore apparently unlimited] on an existing terrace building (i.e. a building which is not detached) of two or more storeys, used in the same way as described above, or one extra storey on such a building that currently comprises only one storey.

AC - Construction of up to two extra storeys of [an unspecified number of] flats above a single C3 dwellinghouse of two or more storeys in a terrace, or one extra storey on such a dwellinghouse that currently comprises only one storey in a terrace.

AD - Construction of up to two extra storeys of [an unspecified number of] flats above a single detached C3 dwellinghouse of two or more storeys, or one extra storey on such a dwellinghouse that currently comprises only one storey

In relation to the number of storeys, any floors below ground level and any existing loft conversion or roof extension must be excluded in counting the qualifying number of storeys for the purposes of Class 20. It follows from this that the existing accommodation in the roof must be counted as taking up one of the storeys permitted in the upward extension of the building.

In all cases in Part 20, the permitted development includes (within appropriate limits) necessary engineering operations, replacement or provision of plant, and the construction of storage, waste or other ancillary facilities.

However, before gung-ho building owners and developers start charging off in all directions with proposals for ugly and unneighbourly extensions, we should all be aware of the prohibitions that restrict the scope for such extensions.

Those applying to Class AA of Part 1 differ somewhat from the restrictions that apply under Class 20. The following is not a complete list of the prohibitions in paragraph AA.1 but, among these, development under Part 1, Class AA is not permitted :

- if the existing dwelling is situated within a Conservation Area, an Area of Outstanding Natural Beauty, the Broads, a National Park or a World Heritage Site (“Article 2(3) land”) or a Site of Special Scientific Interest (SSSI) [Note that, whilst in this case these prohibitions do not extend to a listed building or a building within its curtilage, the provisions of the Listed Buildings Act would nevertheless apply, and any such development would undoubtedly require Listed Building Consent, which in many cases it would be unlikely to get];

- if permission for its use as a dwellinghouse was granted only by virtue of Class M, N, O, P, PA or Q of Part 3;

- if it was constructed before 1st July 1948 or after 28th October 2018. The building must have been in its existing qualifying use on 5 March 2018,so if that use permanently ceased before that date, it does not qualify. [Note that “in use” in this context would, in my view, include a ‘dormant’ use, i.e. a use which was no longer active on that date, but in respect of which the existing use right for planning purposes had not been lost.];

- if, at any time following its original construction, the existing house has been enlarged by the addition of one or more storeys (whether with or without planning permission, or in reliance on PD under Class AA or otherwise)

There are also strict height limitations, which are too complicated to summarise here. The extension can only be built above the principal part of the dwellinghouse (i.e. the main part of the dwellinghouse excluding any front, side or rear extension of a lower height, whether this forms part of the original dwellinghouse or is a subsequent addition).

[This PD right is subject to a prior approval application first being made in respect of the matters listed in paragraph AA.2. I am not going discuss the details here, nor have I got time to run through the other conditions that apply.]

Development under Classes AA, AB, AC and AD of Part 20 is not permitted if the site is:

(i) article 2(3) land [see above];
(ii) a site of special scientific interest;
(iii) a listed building or land within its curtilage;
(iv) a scheduled monument or land within its curtilage;
(v) a safety hazard area;
(vi) a military explosives storage area; or
(vii) land within 3 kilometres of the perimeter of an aerodrome.

Development under these Classes is also precluded if the works exceed the permitted internal and external height limits, or if the permitted engineering operations exceed the specified limitations both as to their nature and as to their physical extent.

These PD rights are subject to strict conditions, the most important of which is the requirement to make a prior approval application. In addition to the ‘usual’ matters that may require prior approval (with which we have all become familiar under Part 3), other matters that will require attention include:

- the provision of adequate natural light in all habitable rooms of the new flats;
- impact on the amenity of the neighbouring premises including overlooking, privacy and the loss of light;
- whether, because of the siting of the building, the development will impact on a protected view identified in the Directions Relating to Protected Vistas dated 15th March 2012 issued by the Secretary of State,

also [in the case of Classes AA and AB only but not AC and AD]:
- impacts of noise from any commercial premises on the intended occupiers of the new flats;
- impacts of the introduction of, or an increase in, a residential use of premises in the area on the carrying on of any trade, business or other use of land in the area;

Any development under Classes AB, AC and AD is permitted subject to the condition that the development must not include a window in any wall or roof slope forming a side elevation of the building. In the case of Classes AC and AD, the materials used in any exterior work must also be of a similar appearance to those used in the construction of the exterior of the existing building and, following the development, the roof pitch of the principal part of the building must be the same as the roof pitch of the principal part of the existing building.

There is a condition that the development permitted must be completed within a period of 3 years starting with the date prior approval is granted. As in other cases, approval of construction management and methods will be required, including mitigation of construction noise, dust, vibration and traffic on occupiers of the building and adjoining owners or occupiers. Notice of completion of the development must also be given to the LPA by the developer. Following the development, every dwelling in the building must remain in use as a dwellinghouse within the meaning of Class C3 of the Schedule to the Use Classes Order and for no other purpose, except to the extent that the other purpose is ancillary to the primary use as a dwellinghouse.

The procedure for processing and determining the prior approval application is largely similar to the process that has become familiar over the past seven years. No time limit is stated in Part 20, but Article 7 provides that where no period is specified for the determination of the prior application, it is to be determined within a period of 8 weeks beginning with the day immediately following that on which the application is received by the authority, or within such longer period as may be agreed by the applicant and the authority in writing. However, in contrast with the provisions in Parts 1, 3, 6 and 16, there is no default provision that would entitle the developer to proceed with their development in the absence of determination within the 8-week period. The only remedy open to the applicant in these circumstances is an appeal against non-determination under section 78(2) of the 1990 Act.

I have deliberately confined this note to the main points, and have omitted some of the legislative detail. Readers should therefore refer to the actual text of SI 2020 No.755 for a complete picture of this legislation.

© MARTIN H GOODALL