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Planning round-up AJ September 2001

by Brian Waters

Planning authorities are waking up to the consequences of an appeal decision made in 1997, to the effect that full-width dormer and roof extensions generally need planning permission and do not have permitted development rights. The reason is that they span onto the party wall(s) and so extend beyond the curtilage of the house.AJ reader John Dawson of ALS Architects first came across this interpretation with the London Borough of Wandsworth who had been unaware of the 1997 decision until recently. The case related to a mid-terrace house in Bath1 where the inspector found that the full-width dormer had been built on land (half the width of the party walls) which is not part of the dwelling house.

Architects commonly believe that a party wall is owned jointly in common between the neighbours but since the 1925 Law of Property Act this has not been the case (these things take a while to get appreciated it seems), so in fact each neighbour owns a half. The definition of curtilage is important and is discussed fully by the inspector, confirming that it includes the house itself. He says Òadvantage cannot be taken of the wording of the provisions of the (General Permitted Development) Order, since the extension is not an enlargement of the dwellinghouse within its curtilageÓ.

It seems that a large number of such extensions have been built without permission and there may be authorities who, if asked, would still say that they have permitted development rights. So proceed with caution on this one. A revision to the GPDO could rectify the issue; meanwhile there will be fewer of these unattractive extensions.

Greater use of Completion Notices urged

A new DTLR report2 investigating the use of such notices finds that they are hardly used at all and that they should be if the supply of new homes is to be managed successfully. So first, what is a Completion Notice? It is the only mechanism a planning authority has to get a developer who has started his development to finish it. In housing this often means that a first phase has been built and that more houses have been permitted but have not been built.

The authority may issue a notice under s.94 of the Planning Act which has the effect of giving the developer one year in which to implement the balance of his permission or otherwise to lose it. The procedure needs a (slow) approval from the Secretary of State and can be challenged. Since it will rarely force a landowner to build if he does not want to, it is not seen as being of much use. The current concern is that the new policy under PPG3 (Housing) of managing the release of housing sites could become frustrated if too many uncompleted permissions exist. So argues the report which was prepared at Cardiff University under former chief planning inspector Professor Stephen Crow.

ACA attacks "iniquitous" English Heritage policy

Eli Abt former chairman of ACAPAG, the ACA planning group, has written to RIBA President Paul Hyett supporting his pledge to campaign for a dilution of excessive EH powers. In particular he dismembers a new EH policy statement/practical guide Enabling Development and the Conservation of Heritage Assets. ÒThe entire document is unrealÓ he says. It proceeds from the premises that (inter alia): ¥ listed building owners invariably and deliberately neglect their buildings so as to squeeze new development out of adjoining land; ¥ all such development within the listed building curtilage is automatically a disbenefit to the listed building; ¥ in any event the curtilage is where EH says it is, irrespective of the historic evidence; ¥ even outside the curtilage all such development is automatically a disbenefit to the buildingÕs setting... ¥ all such development is also contrary to development plan policies...

The new policy concludes that all such developments therefore require detailed financial justification of the alleged disbenefits and that the applicant has to reveal every financial detail for EHÕs scrutiny, irrespective of whether or not the proposal is actually in breach of statute, policy or guidance and whether or not material to the application.

Such justification will include not just existing use value ignoring ÔhopeÕ value but also how much was actually paid for the property Ôfor the sake of opennessÕ. ÒIt would be difficult to find a more blatant example of an immaterial planning consideration in terms of ss. 54A and 70 of the 1990 Planning ActÓ, concludes Apt.

He also comments that the EH policy runs against everything the Government is trying to achieve with urban regeneration and the sustainable re-use of brownfield property.

1 Appeal reference APP/C/96/F0114/642257

2 Completion Notices £14 from DTLR on 01709 891318

Brian Waters is principal of the Boisot Waters Cohen Partnership. Tel 020 7828 6555 or e-mail brian@bwcp.co.uk