Residential extensions and the adjoining premises objection mechanism

I wrote about ‘Permitted Development, Residential extensions and the law of unintended consequences’ on 24th April and queried whether the proposed protection of neighbour amenity mechanism might have a potentially wider and damaging impact.

Since then we have had The Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2013 (the 2013 Order) which was made on the 7th May and comes into force on the 30th May 2013.

This deals, in Article 4, with amendments to Part 1 of Schedule 2 to The Town and Country Planning (General Permitted Development) Order 1995 (the 1995 Order) to allow larger home extensions to be built until 30^th May 2016.

This temporary permitted development right is subject to a new procedure. Before beginning the development the person relying on the right must notify the LPA. The LPA will then notify neighbouring properties. If neighbours object to the proposed development the LPA must consider whether the extension should be approved. The development may not be started until the LPA has notified the person of their decision or until the expiry of 42 days without such a decision being notified.

The provision allows for a single storey 4m high rear extension of up to 8m in the case of a detached dwellinghouse or 6m in the case of any other dwellinghouse extending beyond the rear wall of the original dwellinghouse to be built without the need for planning permission.

But before beginning the development there is a convoluted process which must be complied with as follows: 

• The developer has to provide certain information to the LPA. This includes a written description of the proposed development including how far the enlarged part of the dwellinghouse extends beyond the rear wall of the original dwellinghouse; the maximum height of the enlarged part of the dwellinghouse; and the height of the eaves of the enlarged part of the dwellinghouse; a plan indicating the site and showing the proposed development; the addresses of any adjoining premises; the developer’s contact address; and the developer’s email address if the developer is content to receive communications electronically. 
• The LPA then notifies owners or occupiers of any adjoining premises about the proposed development by notice which describes the proposed development, including how far the enlarged part of the dwellinghouse extends beyond the rear wall of the original dwellinghouse; the maximum height of the enlarged part of the dwellinghouse; and the height of the eaves of the enlarged part of the dwellinghouse; provides the address of the proposed development; specifies the date when the proposal information was received by the LPA and the date when the 42 day period would expire; and specifies the date (being not less than 21 days from the date of the notice) by which representations are to be received by the LPA. The LPA has to send a copy of this notice to the developer.
• Where any owner or occupier of any adjoining premises objects to the proposed development, the prior approval of the LPA is required as to the impact of the proposed development on the amenity of any adjoining premises.
• The LPA may require the developer to submit such further information regarding the proposed development as it may reasonably require in order to consider the impact of the proposed development on the amenity of any adjoining premises. 
• The LPA shall, when considering the impact take into account any representations made as a result of the notice given; and consider the amenity of all adjoining premises, not just adjoining premises which are the subject of representations. 
• The development shall not be begun before either written notice that prior approval is not required; the grant of prior approval; or the expiry of 42 days following the date on which the necessary information was first provided to the LPA and the LPA has not determined whether prior approval is to be given or refused. 
• The development shall be carried out where prior approval is required, in accordance with the details approved by the LPA; or where prior approval is not required, or on the expiry of the 42 day period, in accordance with the information provided unless the LPA and the developer agree otherwise in writing.
• The development shall be completed on or before 30^th May 2016 and the developer shall notify the LPA of the completion of the development as soon as reasonably practicable after completion which notification shall be in writing and shall include the name of the developer; the address or location of the development, and the date of completion.

It does however seem clear from the provisions of Article 4 of the 2013 Order which inserts a new Article 4 (1) in the 1995 Order to the effect that “The following conditions apply to development permitted by Class A which exceeds the limits in paragraph A.1(e) but is allowed by paragraph A.1(ea)” that the new adjoining premises objection mechanism only applies to the temporary enlarged extensions and not to all Class A Development within the curtilage of a dwellinghouse. This at least reflects the assurances given by Ministers in the Parliamentary debates.

So from a householder's point of view the position is clear. They can rely on the existing permitted development rights and implement them without reference to either the LPA or the adjoining landowner or they can seek to implement the larger extension provided for under the new provisions and risk becoming embroiled in a process which permits objection from their immediate neighbour and ultimately rejection by the LPA.

Changing from office to residential – the reality.

The Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2013 was made on the 7th May and comes into force on the 30th May 2013.

This is the Order that provides for the ability to move from Class B1(a) office to Class C3 residential without the need to obtain planning permission.

I wrote about this proposal on 24th January 2013.

On that occasion I drew attention to the interesting point that only B1(a) was referred to. I pointed out that this class does not include an office in use within Class A2 (financial and professional services) and the other Class B1 uses, namely (b) use for research and development of products or processes or (c) any industrial purpose being a use which can satisfactorily be carried out in a residential area, were by definition excluded from the proposal.

That remains the position.

The building must therefore be or have been in use as a Class B1(a) office on 30th May 2013. If it is or was vacant on that date, its last use must have been for Class B1(a) purposes. That being the case developers will have to check the planning history of a building to ensure that the B1(a) use is lawful along with satisfying themselves that other restrictions do not apply e.g. planning condition(s) or s106 planning obligation(s) restricting use or lease user clauses or covenants restricting use. New build offices not previoulsy used as such do not therefore benefit from the new permitted development right so that it is not possible to circumvent affordable housing requirements arising from new build residential units. The change of use from office to residential will not attract an affordable housing provision. 

There are further restrictions which exempt the provisions namely:

• Listed buildings or Scheduled Monuments;
• Safety hazard areas (where notified to LPAs by the Health & Safety Executive);
• Military explosives areas (as licensed by the Secretary of State for Defence).

In addition certain areas have been exempted arising out of the provision for LPAs to seek exemption from the provisions of the order. Indeed it was widely reported that a number had done so although it would appear that not all exemption applications were sucessful. It is difficult to understand the rationale behind the exemptions granted and CLG has not confirmed how many applications were received or eventually rejected but in an impact assessment on the office conversion rules, the CLG said that areas had been exempted where the new rules would cause "either the loss of a nationally significant area of economic activity or a substantial adverse economic consequences at the local authority level which are not offset by the positive benefits the new rights would bring".

I have subsequently found that Nick Boles confirmed in a written answer (at 424W) to the questions as to:

• what timescale he has put in place to assess the effect of the new office to residential permitted development right;
• what plans his Department has to consider further exemptions from the new office to residential permitted development right;
• what plans his Department has to review the areas excluded from the new office to residential permitted development right;
• for how long exemptions from the new office to residential permitted development right will remain in place;
• what criteria were used to decide which areas should be exempt from the new office to residential permitted development right;
• how many local authorities submitted a request for exemption, for all or part of their local authority area, from the new office to residential permitted development right.

that the Government’s approach to monitoring and review of the changes is set out in the Explanatory Memorandum to the 2013 Order.

He went onto to confirm that CLG received requests for exemption from the permitted development rights for change of use from office to residential uses from 165 local planning authorities and that a robust and thorough assessment of all requests was carried out against the criteria set out in the Chief Planner's letter of 24 January, taking into account the strength of the case and the robustness of the supporting evidence. He said that following this assessment process there will not be another opportunity to request an exemption during the three-year period that the new rights are in place.

The Order makes reference to areas exempt from the change of use permitted development right by reference to maps which can be found on the CLG website.

These exempt areas are:

• The Central Activities Zone and Tech City in London, which covers the whole of the City of London and parts of Islington, Hackney, Tower Hamlets, Southwark, Lambeth, Wandsworth, Westminster and Camden;
• The whole of Kensington and Chelsea;
• The Isle of Dogs (Canary Wharf);
• The Royal Docks Enterprise Zone in Newham;
• Manchester City Centre;
• Milton Park Enterprise Zone and Harwell Enterprise Zone in the Vale of White Horse; and
• Certain areas of Sevenoaks, Ashford and East Hampshire.

That said, even if an exemption applies, a developer can always apply for planning permission in the usual way and take advantage of the favourable advice given in paragraph 51 of the National Planning Policy Framework.

In order to rely on the new permitted development right it will, in all cases, be necessary to make a “prior approval” application to the LPA. The process is set out in paragraph N and it is intended to screen out buildings and land where residential use would be unacceptable in terms of transport impact, contamination risk or flooding risk. The LPA will then consult certain statutory consultees and immediate neighbours, and may require information to enable it to assess impacts and risks. The LPA can approve or refuse the application but if it does neither within 56 days, the developer may proceed (though this period may be extended by agreement). A refusal can be appealed as though it were a refusal of planning permission.

Any material external physical alterations will need to be the subject of a planning application given that the permitted development right only applies to the principle of use. In addition Building Regulations approval will be required in the usual way.

The provision only applies for a three year period and the use must commence no later than 30th May 2016. In reality this means that conversion works will have had to have started earlier.

If there is any doubt about whether the permitted development provisions apply to a particular building a developer can apply to the LPA for a Lawful Development Certificate.

Telecomms, superfast broadband and the Growth and Infrastructure Act 2013

The government hopes that improved broadband, particularly in rural areas, will help stimulate the economy and the Growth and Infrastructure Act 2013, which received Royal Assent on 25th April 2013, addresses this expectation in provisions to make it easier for telecoms companies to roll out superfast broadband services.

The Electronic Communications Code (Schedule 2 Telecommunications Act 1984) (the Code) is designed to facilitate the installation and maintenance of electronic communications networks. It gives rights to network providers to install and maintain apparatus in, over and under land.

The powers granted by the Code only apply to electronic communications operators who have obtained a direction from Ofcom that the Code applies to them (s106(3)(a) Communications Act 2003 (CA)).

S109(1) CA gives the Secretary of State power to make regulations imposing conditions and restrictions on the application of the Code to network operators. In exercising this power, the Secretary of State has to have regard to a number of considerations set out in s109(2) CA. These include "the need to protect the environment and, in particular, to conserve the natural beauty and amenity of the countryside" (s109(2)(b) CA).

Duties for public authorities to have regard to preserving the beauty of the countryside are also contained in the following legislation:

• S11A(2) of the National Parks and Access to the Countryside Act 1949.
• S85(1) of the Countryside and Rights of Way Act 2000.
• S17A(1) of the Norfolk and Suffolk Broads Act 1988.

S9, which came into force on 25 April 2013, relaxes the rules in s109 that regulate the siting of telecoms infrastructure. It adds a new condition that the Secretary of State must consider when imposing conditions and restrictions under s109: "the need to promote economic growth in the United Kingdom."

It also provides that, for any regulations the Secretary of State makes under s109, so long as they have complied with the duty to have regard to the need to protect the environment and conserve the natural beauty and amenity of the countryside in section 109(2)(b), they will be treated as having complied with the corresponding duties set out above. This provision only applies to regulations that expire on or before 6 April 2018.

 

The provisions clearly water down the legislation that aims to preserve the countryside. Originally the proposal was to disapply the duties to have regard to conserving the beauty of the countryside completely.

As enacted the effect should be that when the Secretary of State makes secondary legislation under s109, there will still be some room for argument about whether any applicable duties in the countryside preservation legislation have been fulfilled.

Indeed during the Bill’s consideration in the Lords, Communities Minister Baroness Hanham said (at 3:30pm) the rewording of the clause would ensure "that the duty that already exists under Section 109 of the Communications Act 2003 for the secretary of state to have regard for the environment and beauty of the countryside will be deemed to meet the 'have regard' duties set out in protected areas legislation, when the secretary of state comes to make regulations under Section 109".  We shall in due course see.

She added: "I emphasise that the purpose of our reforms is to ensure that fixed broadband deployment is not held back in the small minority of cases where local planning authorities and communications providers are not able to agree the best siting."

That being the case changes, to both the Town and Country Planning (General Permitted Development) Order 1995 and the Electronic Communications (Conditions and Restrictions) Regulations 2003 will be required and to that end a consultation Mobile connectivity in England has been jointly launched by the Department for Culture, Media and Sport and the Department for Communities and Local Government.

Among it’s key measures are:

• to increase the current permitted development height limit for antenna on existing buildings and structures from 4m to 6m. Above this threshold, the developer would need prior approval from the local planning authority (LPA) and the government says that the move would enable mobile operators to install antenna further back from the edge of a building, improving its visual appearance.
• to allow existing masts to be increased in height from 15m up to 20m and in width by up to a third subject to prior approval from the LPA. Heights above the 20m threshold would need planning permission.
• to increase the number of antenna systems allowed on buildings under permitted development rights. Buildings under 15m in height would be allowed up to three systems, up from the current limit of two, while those above 15m would be allowed five, up from three.
• to treble the permitted development total size limit for all dish antennae on buildings. Currently, buildings under 15m high have a total threshold of 1.5m and those above 3.5m. The government is proposing to increase the aggregated dish diameter total threshold to 4.5m and 10m respectively.

Given the earlier pronouncements the government has said that it would make sure "the appropriate safeguards remain firmly in place for protected areas".

The six-week consultation ends on 14 June.

Heritage Reform and the Enterprise and Regulatory Reform Act 2013

The Enterprise and Regulatory Reform Act 2013 received Royal Assent on 25th April 2013 and introduces a number of significant and wide ranging reforms across a broad spectrum of legislative topics not least of which is in the field of employment and copyright.  

But of particular interest to me is that this sprawling piece of legislation brings forward many of the Coalition’s promised heritage reforms including measures for streamlining processes when undertaking works in conservation areas and to listed buildings. Many of these were originally outlined in the 2010 Response to the Penfold Review of non-planning consents and the subsequent Implementation of the Penfold Review in 2011.

The Act has finally been published and the key heritage changes are to be found in Part 5, ss 60 - 63 and schedules 16 & 17. When they come into force (see further below), they will take effect as amendments to the relevant sections of the Town and Country Planning Act 1990 (TCPA) and the Planning (Listed Buildings and Conservation Areas) Act 1990 (LBCA).

Note that the changes only apply to England.

The changes provide for:

• The removal of the need to apply separately for conservation area consent for the demolition of buildings in conservation areas which will be covered by a grant of planning permission (s63 and schedule 17). This will remove duplication.  
• The provision that a listed building’s List description (both new and existing listings are covered) can specify objects or structures as part of a listed building that should not be treated as part of the listing, or they can specify that a part or feature of the building is not of special architectural or historic interest (s63 and schedule 17). This will allow works to be carried out which would previously have required Listed Building Consent (LBC) and should also assist developers and heritage officers to reach a consensus about what should and should not be done to a particular building.
• Relaxation of the Certificate of Immunity (CoI) from listing mechanism so that it can be applied for at any time and without the need for a concurrent planning application (s63 and schedule 17) and a statutory basis for Heritage Partnership Agreements (s60), which can grant prior listed building consent for specific agreed works. Both of these measures will provide additional clarity and certainty for developers and building owners alike and CoIs will allow developers to avoid the significant financial risk of obtaining planning permission.
• A system of national and local class consents (s60 and schedule 16), granting LBC for certain categories of work or buildings without the need for a separate LBC in a similar way to Development Orders granting permitted development rights under the TCPA. These may grant consent either unconditionally or subject to conditions.
• The provision of a new Certificate of lawfulness of proposed works to listed buildings (s61) which will provide a mechanism for local planning authorities (LPAs) to confirm formally that LBC is not required where proposed works would not impact on a building’s special interest.

Taken together all of the proposed changes should simplify and speed up the often lengthy and sometimes onerous process of applying for LBC. These reforms are seen by the Coalition as key to the slashing of red tape and the removal of unnecessary regulation and bureaucracy thereby improving the heritage consent regime without reducing protections which safeguard the historic environment.

While significant provisions of the Act come into force with immediate effect, the heritage provisions do not.

S62 which deals with the Osborne Estate Act 1902 comes into effect on 25th June 2013 (two months after Royal Assent) as do paragraphs 7 & 8 of schedule 17 (and s63 in so far as it relates to them).

The remainder will only come into effect by means of later 'commencement order(s)' when it is anticipated that new rules governing heritage assets and putting flesh on the bones of the primary legislation will be brought forward. 

(See also my earlier post 'Heritage planning regulation under the Enterprise & Regulatory Reform Bill' on 4th January 2013).