“Permitted Development, Residential extensions and the law of unintended consequences”

I have written previously about 'Tories, Residential Extensions, Article 4 Directions and Compensation' in which I suggested that “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…”.

 

Clearly I was not the only one raising concerns about the possible effects and implications of the proposal designed specifically to provide a much needed shot in the arm for local builders. Indeed the House of Lords amended the draft provision in the Growth and Infrastructure Bill the effect of which would have been to allow local planning authorities to opt out of the provisions altogether.

The Coalition did not wish to suffer yet another defeat in the face of growing discontent on its own backbenches and in the House of Commons the Secretary of State, Eric Pickles, made a commitment to give further consideration to the concerns of both Houses such that he then wrote a letter to all Members of Parliament giving the result of his review of the situation.

This resulted in the Coalition amendment which provides that in s.60 of the Town and Country Planning Act 1990 (planning permission granted by development order), in addition to the new subsection (2A) dealing with change of use, there are new subsections (2B) and (2C) which read as follows:

"(2B) Without prejudice to the generality of subsection (1), a development order may include provision for ensuring-

(a) that, before a person in reliance on planning permission granted by the order carries out development of land in England that is a dwelling house or is within the curtilage of a dwelling house-

(i) a written description, and a plan, of the proposed development are given to the local planning authority,

(ii) notice of the proposed development, and of the period during which representations about it may be made to the local planning authority, is served by the local planning authority on the owner or occupier of any adjoining premises, and

(iii) that period has ended, and

(b) that, where within that period an owner or occupier of any adjoining premises objects to the proposed development, it may be carried out in reliance on the permission only if the local planning authority consider that it would not have an unacceptable impact on the amenity of adjoining premises.

(2C) In subsection (2B) "adjoining premises" includes any land adjoining-

(c) the dwelling house concerned, or

(d) the boundary of its curtilage."

The Parliamentary Under-Secretary of State for the Department for Communities and Local Government (Baroness Hanham), in moving the Pickles amendment in the House of Lords, outlined the Coalition’s thinking behind the original proposal which was to “make it easier for thousands of families to undertake improvements to their homes” while remembering that “it is important to ensure that any impact on neighbours is acceptable”.

The amendment is, she said, to make “it possible for the Government to put in place protections for neighbours where adjoining homeowners seek to use our proposed extension to their permitted development rights”.

The amendment is therefore said to be a “light-touch neighbourhood consultation scheme” which recognises that larger extensions could be built without offering neighbours any opportunity to express their views and the Coalition has indicated that it will set out the details in secondary legislation.

The proposals will, it is said, remove the need for local authorities to feel that they have to resort to using Article 4 directions to remove the new permitted development rights. Indeed Baroness Hanham has indicated that the Coalition will work with the Local Government Association to update the Article 4 guidance as part of the Taylor review. Presumably to provide guidance to the effect that local authorities should not make Article 4 Directions in respect of such residential extension permitted development rights. It is to be noted however that there is (at least as yet) no proposal to specifically outlaw the making of Article 4 Directions in such circumstances.

Baroness Hanham sought to make clear that the revised approach will now ensure that under the new rights, in the case of larger extensions, any objection from immediate neighbours will be fully taken into account before permission is granted.

The amendment was agreed in the House of Lords and has now been approved in the House of Commons.

However, it seems to me at least that the wording of the amendment is problematic.

Development of land in England that “is a dwelling house or is within the curtilage of a dwelling house” (my emphasis) goes beyond just the larger extensions contemplated and catches ALL residential development rendering residential permitted development rights otiose.

This cannot be the intention of the Coalition and it is presumed that the detailed changes to be brought forward in secondary legislation amending the terms of The Town and Country Planning (General Permitted Development) Order 1995 (as amended) will make clear that the mechanism only applies to the increased sizes of extensions and not to all residential permitted development.

Indeed, in the Commons debate the Minister (Michael Fallon) when asked to confirm “that existing permitted development rights are not in any way affected by this new procedure, and that they are still there in perpetuity for people to use without any hassle” replied that “Yes, I can confirm that”. We shall see when the secondary legislation is published.

If however it is the effect of the proposed change then ALL such proposals will require submission of costly plans and where adjoining neighbours object the notification and dispute resolution mechanism will add intolerable delay which is precisely what the Coalition’s continuing attacks on the planning system are said to seek to avoid.

In addition, and even if the proposed change only applies to larger extensions, the formalising of the process into a ‘dispute’ between adjoining neighbours (rather than ordinary 3rd party planning application objections which may come from further afield) to be determined and adjudicated on by the local planning authority may have potentially serious implications for later sales by either party. The existence of the ‘dispute’ will, I believe, need to be disclosed to potential purchasers which may prejudice valuations or sales completely (see for example section 2 in the Law Society standard TA6 property information form (2nd edition)).

Neighbours are therefore going to have to consider whether they bring forward controversial proposals or object when proposals are brought forward. Additionally, those who advise on conveyancing transactions are going to have to be alive to the potential disclosure requirements.

On any view the original proposal was bad enough. The suggested solution in my view makes the situation worse and just goes to demonstrate the haphazard muddled thinking of the Coalition.