45 degree rule nightmare

[Tulliepugh]

Hi, I’m looking for some advice please. We submitted a planning application 14 weeks ago. We are the end terrace of 4 and we applied for a 4m rear extension. The neighbour next to us and the neighbour next to them both already have 4m extensions, our neighbours is a conservatory.

When the decision date arrived we heard nothing from Birmingham city council. I gave it a few days and then contacted the planning officer. He told me that due to an administration error, the golf course on the other side of us had not been consulted previously but the letter has now been sent, we would need to wait the statutory consultation period. I asked at the time if anything else would be holding up the application and was told no. Ten days later I received an email from the planning officer, the day prior to him going on annual leave, the letter had only been sent that day - he’d got it wrong.

I waited the consultation period and again heard nothing so I called the officer a few days later and he said the golf course hadn’t responded so our application was recommended for approval. He called me back two days later to say he’d made a mistake and actually the application in its current state would be refused based on the 45 degree code.

The reason they state for a breach of the code is that although in the planning policy it states that the 45 degree measurement can be taken from a conservatory if the conservatory is ‘fully glazed’ The measurement should be taken from the original rear wall. I sent the officer a photograph which shows that the roof of the conservatory is insulated and boarded and the room is used as a dining room but he said they would need to have solid walls too for it not to be classed as fully glazed. Surely if it has solid walls and roof it’s no longer a conservatory?

So my question is, how can I find the planning definition of fully glazed and is it worth trying to fight this? I’ve found the building refs definition which is a roof which is 75% transparent material but this isn’t the same as planning apparently. My poor builder is trying to hold out for my job and I feel awful. It’s so frustrating because the planning officer has just messed me about the whole time

Thanks so much for any advice,

Jess

 

[jeds]

It's very difficult to fight idiot planners because they are, well, idiots. Your problem is that you have hit a policy issue. A nonsensical policy issue but still policy. Was this a planning application or a prior notification of a larger extension under permitted development? If it was planning and there were no objections, I would submit a prior notification for a larger extension. As long as there are no objections the LPA must approve it without assessing amenity. Otherwise you could appeal the decision or - as a fallback - you could build a 3m extension under permitted development.

 

[Tulliepugh]

Well that’s where it becomes even more infuriating. I originally applied for prior approval but due to a 30cm ‘extension’ to the old coal store it would have been a wrap around and therefore not permitted development. I withdrew the application on the planning officers advice but only after my neighbours had already received the letter. They then received a second letter when I submitted full plans. They haven’t objected to either letter.

The planning officer has suggested that we could extend 3m from the rear wall of the original dwelling under permitted development and he would approve the 4m extension on the 30cm ‘previous extension’ so my next question would be, as my neighbours have been consulted and not raised any objection why could we not do 4m under prior approval and he add the extension bit onto that? It’s so frustrating because he said it was approved so I paid building regs and my builder to put in a retaining wall

 

[jeds]

Frustrating indeed. I would push the common sense angle and see what you can achieve. It sounds like there must be a solution.

Whatever you do DO NOT START WORK until you have it resolved. Prior notification cannot be allowed if work has started.

 

[Mag2.0]

It's very difficult to fight idiot planners because they are, well, idiots. Your problem is that you have hit a policy issue. A nonsensical policy issue but still policy. Was this a planning application or a prior notification of a larger extension under permitted development? If it was planning and there were no objections, I would submit a prior notification for a larger extension. As long as there are no objections the LPA must approve it without assessing amenity. Otherwise you could appeal the decision or - as a fallback - you could build a 3m extension under permitted development.

Hi Jeds

Interesting comment.
To clarify, are you saying that proposed developments that do not receive objection are approved without assessing amenity ie righ to light etc.

Regards

 

[Tulliepugh]

Hi Jeds

Interesting comment.
To clarify, are you saying that proposed developments that do not receive objection are approved without assessing amenity ie righ to light etc.

Regards

Hi Mags,

My understanding is that permitted development and prior approval will not consider the 45 degree code. You must meet part A.1 of the permitted development guidelines and for prior approval your neighbours need to be notified with a 21 day statutory notification period.

 

[zad3717]

So both neighbours have built extensions to the same depth 4m? did they get planning permission they should have due to size.
Also assume single story? 45 deg rule shouldn't be applied its mainly on 2 storey extensions as we tend to have 6 foot fences / walls which should take the majority of light from the lower windows anyway.

 

[Tulliepugh]

So both neighbours have built extensions to the same depth 4m? did they get planning permission they should have due to size.
Also assume single story? 45 deg rule shouldn't be applied its mainly on 2 storey extensions as we tend to have 6 foot fences / walls which should take the majority of light from the lower windows anyway.

We are the end terrace and the next two in the row both have either extension/conservatory built to 4m - apparently this was possible under permitted development in that past?

Yes it’s just single storey but it’s not specified in the Birmingham design guide if the 45 degree code applies only to 2 storey buildings. It’s honestly just feels totally futile, on Thursday the planner suggested submitting another prior approval, building that and then applying for another planning application and building that and then knocking the two together, he must think I’m made of money

 

[^woody^]

The 45° rule is normally applied to ground floor extensions and some councils apply a 45° or 60° rule to first and second floor extensions. Birmingham applies 45° only to all extensions.

The Birmingham Supplementary planning guidance on the 45° code states -

"WHAT IF THE NEIGHBOUR’S EXTENSION IS A CONSERVATORY?
If the affected property has an extension which is mainly made from glass, such as a conservatory, the Code is applied to the original window
opening in the wall"

Thats the wording that needs to be interpreted.

"Mainly" would take the dictionary definition - "more than anything else", so potentially 51% of the walls and roof would need to be "mainly made of glass".

However, Birmingham's criteria for a conservatory to be "mainly made from glass" is misleading, as typically conservatories will have plastic roof sheets. In which case many conservatories with low walls, glass windows but plastic roof sheets wont be "mainly made of glass".

If the officer used the words "fully glazed", that is not what the guidance says, so is incorrect.

The guide was written in 2006 and is still valid. However, there has been plenty of time for the wording to have been clarified if it was wrong.

Or perhaps the building regulation definition of a conservatory - "A minimum of 50% of the new wall and 75% of the roof is glazed or uses translucent material" may be more appropriate to base an argument on. Often, in situations where things need to be interpreted and clarified, other similar definitions from similar circumstances or situations are used as persuasive arguments.

I would argue that the Officer is not applying the actual wording of the guide that applicants are expected to follow. The officer may be deemed to be making up his own definition, and if so, that can be challenged and appealed.

 

[zad3717]

We are the end terrace and the next two in the row both have either extension/conservatory built to 4m - apparently this was possible under permitted development in that past?

Yes it’s just single storey but it’s not specified in the Birmingham design guide if the 45 degree code applies only to 2 storey buildings. It’s honestly just feels totally futile, on Thursday the planner suggested submitting another prior approval, building that and then applying for another planning application and building that and then knocking the two together, he must think I’m made of money

So Birminghams own policy says the following... on page 2


"Habitable rooms include living rooms, bedrooms, kitchens and conservatories but do not include rooms such as bathrooms, utility rooms, halls, landings or garages."

So this being said the 45 deg line would come from the middle of the window on the habitable room which would be the front of their conservatory.

 

[Tulliepugh]

The 45° rule is normally applied to ground floor extensions and some councils apply a 45° or 60° rule to first and second floor extensions. Birmingham applies 45° only to all extensions.

The Birmingham Supplementary planning guidance on the 45° code states -

"WHAT IF THE NEIGHBOUR’S EXTENSION IS A CONSERVATORY?
If the affected property has an extension which is mainly made from glass, such as a conservatory, the Code is applied to the original window
opening in the wall"

Thats the wording that needs to be interpreted.

"Mainly" would take the dictionary definition - "more than anything else", so potentially 51% of the walls and roof would need to be "mainly made of glass".

However, Birmingham's criteria for a conservatory to be "mainly made from glass" is misleading, as typically conservatories will have plastic roof sheets. In which case many conservatories with low walls, glass windows but plastic roof sheets wont be "mainly made of glass".

If the officer used the words "fully glazed", that is not what the guidance says, so is incorrect.

The guide was written in 2006 and is still valid. However, there has been plenty of time for the wording to have been clarified if it was wrong.

Or perhaps the building regulation definition of a conservatory - "A minimum of 50% of the new wall and 75% of the roof is glazed or uses translucent material" may be more appropriate to base an argument on. Often, in situations where things need to be interpreted and clarified, other similar definitions from similar circumstances or situations are used as persuasive arguments.

I would argue that the Officer is not applying the actual wording of the guide that applicants are expected to follow. The officer may be deemed to be making up his own definition, and if so, that can be challenged and appealed.

So Birminghams own policy says the following... on page 2


"Habitable rooms include living rooms, bedrooms, kitchens and conservatories but do not include rooms such as bathrooms, utility rooms, halls, landings or garages."

So this being said the 45 deg line would come from the middle of the window on the habitable room which would be the front of their conservatory.

Thank you both so much for your replies, it’s really reassuring to hear that I’m not the only person who feels this is totally open to interpretation by the officer. He hasn’t responded to an email since last Tuesday and his phone is off every day. The application extension expires on Monday.

In the meantime I have spoken to my neighbours who have kindly agreed to is using hollow soffit to block the windows on our side and then roof is already insulated and boarded. If that doesn’t meet the requirements I’m genuinely at my wits end! Just need him to acknowledge my existence first

 

[Ivor Windybottom]

As a layman I'm baffled by the situation described in this thread. Taking the worst case, let's say next door's extension isn't a conservatory but a building, with windows facing to the sides. Are we really saying that they immediately gain a right to light from the neighbour's garden, to their new windows? If that's the case then every other house in a terrace can build an extension, and those between them can't.

I don't understand the logic of a non-original extension to a terrace having any rights at all over its neighbours. Tell me what I'm missing, but this all sounds illogical and very unfair.

In my view arguments about whether it is or isn't a conservatory should be irrelevant. You all started off with terraced houses, someone building out shouldn't block others in fact it should set a precedent for them all doing the same. If everyone ends up staring into each other's windows or looking at walls then so be it, they shouldn't have built that way assuming the neighbours would stay where they were.

 

[Tulliepugh]

As a layman I'm baffled by the situation described in this thread. Taking the worst case, let's say next door's extension isn't a conservatory but a building, with windows facing to the sides. Are we really saying that they immediately gain a right to light from the neighbour's garden, to their new windows? If that's the case then every other house in a terrace can build an extension, and those between them can't.

I don't understand the logic of a non-original extension to a terrace having any rights at all over its neighbours. Tell me what I'm missing, but this all sounds illogical and very unfair.

In my view arguments about whether it is or isn't a conservatory should be irrelevant. You all started off with terraced houses, someone building out shouldn't block others in fact it should set a precedent for them all doing the same. If everyone ends up staring into each other's windows then so be it, they shouldn't have built that way assuming the neighbours would stay where they were.

I said this to the planning officer and this was genuinely his response “building don’t have windows in side aspects” I said mine does and he said “well that’s highly unusual”. He hasn’t responded to my email from last Thursday and his phone is switched off again today. I’m at my wits end!