Ok I'm happy to agree to disagree. If any decisions do emerge where LDCs are granted by councils, or by Inspectors on appeal based upon this judgement, it would be interesting to post the details here
Update; I recently emailed DCLG to ask their opinion on the Hilton case - copy of response attached.
It may be some time before they get their act together, so presumably the law on what constitutes 'the enlarged part of the dwelling house' is now based on the interpretation given in Hilton.
Has anyone seen any decisions yet where LDCs have been granted by councils, or by Inspectors on appeal, based upon this judgement?
It's been about 6 weeks so I would have thought if LPAs and Inspectors are going to follow this judgement then quite a few would have been issued by now..
First floor extension considered "enlarged part" in its own right
11 January 2017 ,
A first floor extension to a dwelling in London was granted as lawful permitted development under Class A1 (1) of the General Permitted Development Order, 2015, being considered as the enlarged part of the building on its own, despite an existing ground floor extension.
The council had refused the lawful development certificate (LDC) considering the first floor extension was not permitted development under the GPDO, 2015, as whilst the extension itself was more than two metres from the curtilage of the property it would be built over an existing ground floor extension which was closer than two metres to the boundary curtilage. The council treated the "enlarged part' as per Class A1(1) of the Order as including the ground floor extension. However, the council's decision was dated just a few days before a High Court decision Hilton, R versus SoS, 2016, which held that the enlarged part referred to the proposed extension on its own, contrary to previous judgements on the issue. The inspector concluded the operations were lawful if begun at the time of the LDC application and the council's refusal was not well-founded. The fact that the council's decision predated the High Court decision was of no consequence as the High Court's decision was declatory of law since the original 2015 Order.
Inspector: D A Hainsworth; Written Representations
This is the only decision of its kind I have seen in the 7 months since the High Court decision was taken. I am not aware of any councils following the approach set out in the High Court decision. Is anyone aware of any similar decisions or is this the only one to have emerged?
I note the Government's technical guidance has not been amended in the 7 months following the decision and still includes the advice that:
“Enlarged part of the house” - is the part(s) of a dwellinghouse comprising any enlargements of the original house, whether built under permitted development rights or following any application for planning permission, and whether the enlargement is undertaken on a single occasion or added incrementally. https://www.gov.uk/government/uploa...238/160413_Householder_Technical_Guidance.pdf
I think that the gist is that an extension of an existing extension will not necessarily need planning permission, even if the original extension plus proposed extension would have needed p.p.
The decision goes against the advice in the Technical Guidance, but DCLGs' advice sometimes has been pretty crap and subject to being overturned by the courts.
Government guidance says that any extensions must be considered as a whole when looking at PD restrictions. E.g. if the regs say a rear extension cannot be more than 3 metres deep under PD, if you have a 2 metre deep rear extension already, you could only add 1 more metre under PD.
This Judge's decision suggests that such an approach should not be taken and only the extension proposed should be considered. Which would facilitate multiple extensions under PD which if considered as a whole would breach PD restrictions.
The judgement itself is however contradictory as the Judge appears to think that his decision will not have that impact: The concern raised by Mr Parker on behalf of the Secretary of State in this respect is the potential for piggy-backing. This is directly addressed in respect of the overall extension from the rear wall of the original dwellinghouse, which limits the overall extension to the relevant distance. It is not clear to my mind why there is any enhanced risk of piggy-backing in that respect.
So it appears that in some respects the Judge accepts that 'the overall extension' should be considered, but in other respects he considers only the extension proposed need be considered.
DCLG has not responded to the decision and has not updated it's technical guidance document.
So in a nutshell, we have gone from a situation where it was clear that 'the overall extension' had to be considered in all cases, to a situation where that is no longer clear.
I am not aware of any councils who are trying to follow the Judge's decision. All councils that I am aware of continue to follow Government's Technical Guidance document.
I don't think there's any contradiction. As I see it, all that is requried is a minor tweak to the guidance - but I accept that I get lost in all that legalese quite easily, so (although I have read the judgment quite carefully) I might have misconstrued some point. A Council that failed to take account of the judgment would be in contempt.
That's a tough read isn't it. To me, it feels that they've not redefined the term 'original dwellinghouse' across the scope of the whole act. Instead they've redefined how 'original dwellinghouse' should be interpreted in the context of the specific exceptions at were being argued. Paragraph ~27 onwards...
Government in their technical guidance expands significantly on the actual GPDO. A lot of the definitions etc which are in the guidance should be in the actual legislation- this could cut out some of the confusion as the legislation on its own is open to interpretation.
Strange Government have not reacted to this decision- 7 months later, no advice, no update to their technical guidance, and no update to the legislation to clarify matters.
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