Tories, Residential Extensions, Article 4 Directions and Compensation

The BBC has today reported that a Tory London council is looking at ways in which it can circumvent the Coalition’s proposals to relaxed permitted development rules in respect of residential extensions.

The Coalition believes that freeing up the rules and allowing greater development without the need to go through the formalities of applying for and obtaining planning permission will reinvigorate the construction industry and help boost the economy.

The measures, as part of a wider package of proposals, were set out in a ministerial statement by Eric Pickles.  This said that “We will consult shortly on changes to increase existing permitted development rights for extensions to homes and business premises in non protected areas for a three-year period. This will mean less municipal red tape to build a conservatory and similar small-scale home improvement and free up valuable resources in local authorities”.

The consultation has not yet been published but is expected to relate to the proposal to ease rules, for a three-year period, on developments including home extensions of up to 8m - compared with the current 3-4m limit on extensions without planning permission.

Permitted Development Rights for development within the curtilage of a dwellinghouse are currently dealt with in the Schedule to the Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2008 and it is these which the Coalition will need to amend in order to implement whatever proposal, if any, is settled on following the consultation exercise.

There were always going to be concerns that a rash of ugly extensions would cause problems for neighbourly relations in the leafy suburbs where natural Tory supporters reside and it now seems that at least one council is considering ways to circumvent the policy.

The Coalition via the DCLG has confirmed that “… if there are genuine local concerns councils can withdraw permitted development rights locally using existing powers - known as article four directions - if the exercise of those planning freedoms resulted in unacceptable impacts on their community."

The Town and Country Planning (General Permitted Development) Order 1995 ("the 1995 Order") deals with the power to make Directions restricting permitted development which is presumably what DCLG is talking about.

So far as is relevant for present purposes there is provision for either the Secretary of State or the appropriate local planning authority, if satisfied that it is expedient that development within the curtilage of a dwellinghouse should not be carried out unless permission is granted for it on an application, to give a direction the permitted development permission granted by Article 3 shall not apply to all or any development of the Part, Class or paragraph in question in an area specified in the direction; or any particular development, falling within that Part, Class or paragraph, which is specified in the direction, and the direction shall specify that it is made under this paragraph (Article 4(1) Direction).

There is also a separate provision where the appropriate local planning authority is similarly satisfied that such development should not be carried out within the whole or any part of a conservation area unless permission is granted for it on an application (Article 4(2) Direction).

There is a formal and timely process to be undertaken by local planning authorities. This may involve the giving of notice to other authorities in the area and may also involve the requirement for approval of the Secretary of State for Article 4(1) directions which may be obtained with or without modifications (see Article 5). In respect of Article 4(2) directions there are additional public notice requirements (see Article 6). Fuller details can be seen in the DCLG produced document which replaces Appendix D to Department of the Environment Circular 9/95: General Development Consolidation Order 1995. This provides updated guidance on the use of Article 4 directions and also contains information about associated compensation arrangements and provides 'model' article 4 directions.

There is no statutory appeal against the making of an Article 4 Direction but such a decision would be open to challenge by way of Judicial Review on ordinary Wednesbury unreasonableness principals.

Section 107 and Section 108 of the Town and Country Planning Act 1990 deal with the obligation on the local planning authority to pay compensation following the making of an Article 4 Direction and either (i) the subsequent refusal of permission for development formerly permitted by the 1995 Order or (ii) the grant of permission in respect thereof subject to conditions other than those imposed by the 1995 Order.

The Town and Country Planning (Compensation) (No. 3) (England) Regulations 2010 (2010 No. 2135) reduces local planning authorities’ liability to pay compensation where they make Article 4 directions. Where 12 months’ notice is given in advance of a direction taking effect there will be no liability to pay compensation. Where directions are made with immediate effect or less than 12 months’ notice, compensation will only be payable in relation to planning applications which are submitted within 12 months of the effective date of the direction and which are subsequently refused or where permission is granted subject to conditions.

But leaving aside the question of whether the Coalition would ever permit recalcitrant local planning authorities to circumvent the proposed changes to the Permitted Development regime by way of the Article 4 mechanism (particularly in circumstances where it is now on notice that that is their avowed intention), what planet do all of these people live on? The potential compensation liability, in my view, makes the whole Council ‘wheeze’ a non starter from the start. Local planning authorities cannot afford to pay out all of the compensation that would arise in the face of a concerted effort by householders to extract maximum benefit from their local authority and it is disingenuous of them to suggest otherwise. Similarly, it is disingenuous of the Coalition to suggest that the problems of the economy and the effects of the recession are not going to be solved by building residential extensions.

Since first writing this post it would now appear that in a survey commissioned by the Royal Institute of British Architects (RIBA), and reported in Planning Magazine (£), 54 per cent of respondents believed the Coalition's proposals would mean the quality of the design of their neighbourhood would get worse.