Some lofty ideas

Architects’ Journal 27/09/2001

BY BRIAN WATERS

Roof extensions deemed unlawful by planners

Planning authorities are waking up to the consequences of an appeal decision in 1997 which ruled that full-width dormer and roof extensions generally do not have permitted development rights, and therefore need planning permission. The reason is that they span onto the full width of the party wall(s) and so extend beyond the curtilage of the house (permitted development rights tend to pertain within a ‘curtilage’). John Dawson of ALS Architects first came across this interpretation with the London Borough of Wandsworth, which had been unaware of the 1997 decision until recently. The case related to a mid-terrace house in Bath 1, where the inspector found that the full-width dormer had been built on the neighbour’s half of the party wall on each side.

Many believe that a party wall is owned jointly in common between the neighbours but since the 1925 Law of Property Act, this has not been the case. In fact, each neighbour owns a half. So was the extension outside the curtilage? Hansard (28 Nov 2000: Column 842), referring to Skerritts of Nottingham Ltd v the Secretary of State for the Environment, Transport and the Regions, quotes the minister for the environment as saying that the word ‘curtilage’ can be ‘flexibly applied to the facts of each case. There is no reason to suppose that a statutory definition of curtilage will be any more helpful than the court’s interpretation’. But the definition of curtilage is important, and the inspector confirmed that it includes the house itself. He says: ‘Advantage cannot be taken of the wording of the provisions of the [General Permitted Development] Order, since the extension is not an enlargement of the dwellinghouse within its curtilage.’ As it stands, it seems that a large number of such extensions have been built without permission and there may be authorities who, if asked, would still say that they have permitted development rights. So proceed with caution.

A revision to the General Permitted Development Order could rectify the issue; meanwhile it may result in fewer unattractive loft extensions. Greater use of completion notices for housing urged A new DTLR report 2investigating the use of completion notices finds that they are hardly ever used, but that they should be if the supply of new homes is to be managed successfully. The report, which was prepared at Cardiff University under former chief planning inspector Professor Stephen Crow, argues that – under PPG3 (Housing) – the policy of managing the release of housing sites could become frustrated if too many uncompleted permissions exist. A completion notice is the only mechanism a planning authority has to make a developer who has started a development finish it. In housing, this often means that a first phase has been built and that more houses have been permitted but have not been built.

The authority may issue a notice under s.94 of the Planning Act, which has the effect of giving the developer one year in which to implement the balance of their permission or otherwise lose it. The procedure needs approval from the secretary of state and can be challenged. Since it will rarely force a landowner to build if they do not want to, it is not seen as being of much use. ACA attacks ‘iniquitous’ English Heritage policy Eli Abt, former chairman of the Association of Consulting Architects Planning Advisory Group, has written to RIBA president Paul Hyett supporting his pledge to campaign for a dilution of excessive English Heritage(EH) powers. In particular, he dismembers a new EH policy statement/practical guide, Enabling Development and the Conservation of Heritage Assets.’The entire document is unreal, ‘ he says. It proceeds from the premises that (inter alia): listed building owners invariably and deliberately neglect their buildings so as to squeeze new development out of adjoining land; all such development within the listed building curtilage is automatically a disbenefit to the listed building; in any event the curtilage is where EH says it is, irrespective of the historic evidence; even outside the curtilage all such development is automatically a disbenefit to the building’s setting; all such development is also contrary to development plan policies.

The new policy concludes that all such developments therefore require detailed financial justification of the alleged disbenefits and that the applicant has to reveal every financial detail for EH’s scrutiny, irrespective of whether or not the proposal is actually in breach of statute, policy or guidance and whether or not material to the application. Such justification will include not just existing use value ignoring ‘hope’ value but also how much was actually paid for the property ‘for the sake of openness’. ‘It would be difficult to find a more blatant example of an immaterial planning consideration in terms of ss. 54A and 70 of the 1990 Planning Act, ‘ concludes Apt.

He also comments that the EH policy runs against everything the government is trying to achieve with urban regeneration and the sustainable reuse of brownfield property.

Brian Waters is principal of the Boisot Waters Cohen Partnership. Tel 020 7828 6555 or e-mail brian@bwcp.co.uk