Can I exercise PD rights on top of planning permission in a ground-up development?

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

    Can I exercise PD rights on top of planning permission in a ground-up development?

    Quick, simple question but I can't find anything on the internet about it. If I get planning permission to build a brand new house, can I then add (say) a rear dormer window or a 3m rear extension (which'd be within PD rights) to the initial build specification? Or do I technically need to complete the house per the plans, wait a bit, and then undertake the additions per PD rights in a separate scheme of works?

    If the latter is technically the case, there is surely no way the council could enforce against me (as it seems impossible that they could refuse -- or even demand that I apply for -- retrospective planning permission for an extension which is permitted under PD rights) -- or am I missing something?

    #2
    The property will be more valuable with none of the PD rights used, so I would suggest that what you are proposing doesn't make sense to most people.

    Comment


      #3
      Originally posted by leaseholder64 View Post
      The property will be more valuable with none of the PD rights used, so I would suggest that what you are proposing doesn't make sense to most people.
      Eh? Surely most properties would be more valuable with the PD rights (judiciously) exercised? People are always talking about doing a loft conversion or an extension to "add value" to their houses. (I am well aware that poorly thought-through extensions sometimes add less value to the property than their build cost, but I am confident that what I intend to do would add more value than it costs me).

      In case anyone's wondering why I don't just include the dormer and 'extension' on the planning application anyway, it is simply to increase the likelihood of planning permission being granted (things which are allowed under PD rights are often more generous than what planners would allow by choice, and also if they were included in the original plan then I would have PD rights on top of these extensions, which might make planners uncomfortable).

      Anyway, I'd be grateful for any views on my question.

      Comment


        #4
        There is some information on this web-site, although this appears to be someone's personal viewpoint.
        http://www.permitteddevelopment.org/...ses-and-PD.php

        I think there would be a need to research legal authority to see if any court has given a judgement on this particular point of law.

        Section 56 of the Town and Country Planning Act 1990 will also need to be considered.

        Comment


          #5
          I think you should build according to the approved plan and get the council inspector to sign off as complying to approved plan and complying to the building standards , and get it assessed for council tax banding before introducing any changes.

          The Council has the right to order any unapproved structure to be pulled down which happened many years ago to a friend's father who built a house in the rear garden without applying for planning consent.

          Comment


            #6
            You ask two questions:

            If I get planning permission to build a brand new house, can I then add (say) a rear dormer window or a 3m rear extension (which'd be within PD rights) to the initial build specification?

            The answer to that would seem to be "no" because you are not building what you have permission to build.

            Or do I technically need to complete the house per the plans, wait a bit, and then undertake the additions per PD rights in a separate scheme of works?

            If you complete the development there is nothing I know of which prevents you from immediately exercising PD rights. There may though be something I do not know of - some devil in the detail of the legislation.

            The above assumes that the land is not in area where the PD rights are not applicable or have been withdrawn and there are no conditions attached to the planning permission which prevent the changes.

            You can reasonably ask, if the answer to the second question is "yes", why you should not be able to make the changes at the outset since the outcome is the same. No one seems to know the answer to that.

            With planning where the answer is not clearcut it is always a good move to run a proposal past the planning authority before doing anything.

            Comment


              #7
              Permitted Development is about not needing Planning Permission - but in the situation as described you would have planning permission.

              I expect building control would take a very dim view if you built something bigger than the granted planning permission.
              (And yes they could order it demolished).

              There's also a question that if you delibrately submitted plans knowing that you would be exceeding the stated size then it would have been a fraudulent planning application.

              Comment


                #8
                Thank you to everyone who has replied. Having read the blog post to which pilman links, and the responses on this thread, I think I now understand the legal situation.

                Originally posted by Lawcruncher View Post
                You can reasonably ask, if the answer to the second question is "yes", why you should not be able to make the changes at the outset since the outcome is the same. No one seems to know the answer to that.
                Thank you for your very helpful post. Your final observation (which I've quoted) articulates the nub of my point rather more clearly than I myself have managed hitherto! The situation does seem bizarre. As you say, the outcome would be identical whichever way you do it, but a slight shift in the order of the works makes one result unlawful and the other lawful. There surely can't be any policy objective which is served by this distinction, which makes me think it may be an unintentional irrationality in the law.

                I am wondering if there is any example of a council enforcing in this situation. Does anyone know of any? I do find it hard to imagine a council issuing an enforcement notice requiring demolition for an extension which they know full well could, entirely lawfully, be re-built identically immediately after the demolition had taken place! And I find it almost impossible to imagine that the Planning Inspectorate -- let alone the courts -- would uphold a council enforcement notice requiring demolition in these circumstances.

                Originally posted by nukecad View Post
                I expect building control would take a very dim view if you built something bigger than the granted planning permission.
                (And yes they could order it demolished).
                To be pedantic, I think you mean the planning department, not building control.

                Originally posted by nukecad View Post
                There's also a question that if you delibrately submitted plans knowing that you would be exceeding the stated size then it would have been a fraudulent planning application.
                Although my question was framed partially in terms of getting a bit more than what PP would allow, I would note that there are also various "legitimate" reasons why this situation might arise. In a development spades don't necessarily hit the ground until two or three years after planning permission is granted, during which time the developer's ideas about exactly what he or she wants to build will often have changed a bit. It would be very useful to have use of the benefit of the tolerances afforded by PD rights in order to avoid the costs and delays of submitting an application to alter the planning permission. Even just being allowed to move a window or similar would be helpful!

                Comment


                  #9
                  Originally posted by JamesHopeful View Post
                  Although my question was framed partially in terms of getting a bit more than what PP would allow, I would note that there are also various "legitimate" reasons why this situation might arise. In a development spades don't necessarily hit the ground until two or three years after planning permission is granted, during which time the developer's ideas about exactly what he or she wants to build will often have changed a bit. It would be very useful to have use of the benefit of the tolerances afforded by PD rights in order to avoid the costs and delays of submitting an application to alter the planning permission.
                  Indeed changes are often needed, or desired, to the submitted/approved plan as work progresses, (and the concientious developer would revise the planning drawings and documents to 'as built' once the work was completed).

                  If the changes are desired and known about before work starts (or even during the work) then you can apply for a planning ammendment, as you already note.
                  In part that depends on whether it is a 'material' or 'non-material' ammendment, which in turn will depend on it's impact on the overall scheme.
                  Here's the government guidance on this:
                  https://www.gov.uk/guidance/flexible...ng-permissions

                  You might aso find this of interest:
                  https://www.designingbuildings.co.uk...ing_permission

                  However what we are talking about here is the deliberate submission of plans that are known not to reflect the intended development.
                  If you know that the planning permission you are applying for is not what you intend to build then that's a deliberate intent to decieve the planners (fraud).

                  OK you might get away with it, I'm sure many do.

                  Comment


                    #10
                    nukecad,

                    Thank you again for your helpful response.

                    To be absolutely clear I feel I should mention (given your suggestion that such an approach could constitute planning fraud!!) that this thread relates to an as-yet entirely hypothetical situation -- I have not yet even identified a plot on which I might undertake my ground-up development, let alone had any plans drawn up or applied for planning permission! However I do intend to undertake a ground-up development fairly soon, hence my desire to understand this issue fully.

                    Ultimately, per my exchange with lawcruncher above this does seem a rather arcane distinction and I can't really believe that any council would enforce against something which is permitted under PD rights merely due to the sequencing of the works (and I can even less believe that the Planning Inspectorate or courts would uphold such an enforcement). However I am by nature very much a playing it by the book kind of person, so based on the replies I can reassure you that I will not be undertaking the approach I mooted in this thread.

                    Comment


                      #11
                      I had realised that it was hypothetial at this stage.

                      I think that the main point is that PD does not need planning permission.
                      If you are getting planning permission then you should apply for exactly what you intend (at the time) to build, applying for something other than you intend can only be seen as a dishonest attempt to gain some advantage.

                      It's that fact that you would be knowingly making a false statement of what was intended in order to gain some advantage that is the problem, not the differences themselves.
                      If there were no advantage to be gained then there would be no need to undestate the intentions anyway.

                      Comment


                        #12
                        I cannot agree with the interpretation given in the previous posting.

                        A planning permission granted by a local planning authority allows the dwelling to be started. Then once it is started that is when Section 56 of the Town and Country Planning Act comes into force."
                        56 Time when development begun.

                        (1)Subject to the following provisions of this section, for the purposes of this Act development of land shall be taken to be initiated—

                        (a)if the development consists of the carrying out of operations, at the time when those operations are begun;
                        Because the planning permission was for the construction of a dwellinghouse that is the time when the planning permission granted by Schedule 2 Part 1 of the Town and Country Planning (General Permitted Development) (England) order 2015 also becomes operative.
                        Permitted development rights
                        PART 1
                        Development within the curtilage of a dwellinghouse
                        Class A – enlargement, improvement or other alteration of a dwellinghouse
                        Permitted Development
                        A. The enlargement, improvement or other alteration of a dwellinghouse.
                        The fact is that planning permission is granted under the terms of each of those Government approved documents.
                        One is an act of Parliament the other is a Statutory Order, and when one looks at what cannot be done under Part1 Class A there is a list which contains 11 reasons which type of development would not be granted planning permission.
                        Development not permitted
                        A.1 Development is not permitted by Class A if—
                        (a) permission to use the dwellinghouse as a dwellinghouse has been granted only by virtue of Class M, N, P or Q of Part 3 of this Schedule (changes of use);
                        (b) as a result of the works, the total area of ground covered by buildings within the curtilage of the dwellinghouse (other than the original dwellinghouse) would exceed 50% of the total area of the curtilage (excluding the ground area of the original dwellinghouse);
                        (c) the height of the part of the dwellinghouse enlarged, improved or altered would exceed the height of the highest part of the roof of the existing dwellinghouse;
                        (d) the height of the eaves of the part of the dwellinghouse enlarged, improved or altered would exceed the height of the eaves of the existing dwellinghouse;
                        (e) the enlarged part of the dwellinghouse would extend beyond a wall which—
                        (i) forms the principal elevation of the original dwellinghouse; or
                        (ii) fronts a highway and forms a side elevation of the original dwellinghouse;
                        (f) subject to paragraph (g), the enlarged part of the dwellinghouse would have a single storey and—
                        (i) extend beyond the rear wall of the original dwellinghouse by more than 4 metres in the case of a detached dwellinghouse, or 3 metres in the case of any other dwellinghouse, or
                        (ii) exceed 4 metres in height;
                        (g) until 30th May 2019, for a dwellinghouse not on article 2(3) land nor on a site of special scientific interest, the enlarged part of the dwellinghouse would have a single storey
                        and—
                        (i) extend beyond the rear wall of the original dwellinghouse by more than 8 metres in the case of a detached dwellinghouse, or 6 metres in the case of any other dwellinghouse, or
                        (ii) exceed 4 metres in height;
                        (h) the enlarged part of the dwellinghouse would have more than a single storey and—
                        (i) extend beyond the rear wall of the original dwellinghouse by more than 3 metres, or (ii) be within 7 metres of any boundary of the curtilage of the dwellinghouse opposite the rear wall of the dwellinghouse;
                        (i) the enlarged part of the dwellinghouse would be within 2 metres of the boundary of the curtilage of the dwellinghouse, and the height of the eaves of the enlarged part would exceed 3 metres;
                        (j) the enlarged part of the dwellinghouse would extend beyond a wall forming a side elevation of the original dwellinghouse, and would—
                        (i) exceed 4 metres in height,
                        (ii) have more than a single storey, or
                        (iii) have a width greater than half the width of the original dwellinghouse; or
                        (k) it would consist of or include—
                        (i) the construction or provision of a verandah, balcony or raised platform,
                        (ii) the installation, alteration or replacement of a microwave antenna,
                        (iii) the installation, alteration or replacement of a chimney, flue or soil and vent pipe, or
                        (iv) an alteration to any part of the roof of the dwellinghouse.
                        No where in the latest version of the GPDO does it state when such development that is allowed can be started.

                        The legal arguments to prevent such an extension during the build of a new house will solely be about the use of the words "original dwellinghouse" and "existing dwellinghouse"

                        Does a half built dwellinghouse immediately meet each of those definitions?

                        i.e, Does it become an "existing dwellinghouse" as soon as the first foundation trench is dug as section 56 indicates, or is there only an "original dwellinghouse" once it is completed and signed off by building control as a completed original dwelling?

                        The barristers will be lining up to argue that point of law, if not already decided by legal authority that someone can point out to this original poster.

                        Comment


                          #13
                          pilman,

                          Very interesting thank you.

                          Originally posted by pilman View Post
                          The legal arguments to prevent such an extension during the build of a new house will solely be about the use of the words "original dwellinghouse" and "existing dwellinghouse"
                          Could there not also be an argument that the terms of the original planning permission have been breached by the exercise of PD rights as part of the original project? (As there is a boilerplate term that the development must take place "exactly as shown on the plans" or similar)

                          Comment


                            #14
                            Originally posted by pilman View Post
                            The legal arguments to prevent such an extension during the build of a new house will solely be about the use of the words "original dwellinghouse" and "existing dwellinghouse"

                            Does a half built dwellinghouse immediately meet each of those definitions?

                            i.e, Does it become an "existing dwellinghouse" as soon as the first foundation trench is dug as section 56 indicates, or is there only an "original dwellinghouse" once it is completed and signed off by building control as a completed original dwelling?
                            Dwelling and dwellinghouse contain a notion of occupation.

                            The plnning portal uses this definition "A self-contained building or part of a building used as a residential accommodation, and usually housing a single household.*"
                            So i suspect that without someone living in it, what you have is a "self contained building" and not a dwellinghouse.
                            And a dwellinghouse and its curtilage is necessary for Permitted Development.

                            So I think that the ditch isn't enough and the final sign off not necessary.

                            If the construction was staged, such that part of the property was a residence, that would (at least in theory) establish the dwellinghouse, which would (I'd have thought) have the same curtilage as the final approved dwelling house and therefore the same PD rights.

                            But a) your budget for lawyers would need to be huge (because it wouldn't be in the public interest to allow planning permission to be swerved that way and b) there must be some regulations that make submitting plans for permission that are knowingly misleading some kind of separate problem.

                            *There are some variants in legislation, but none that undermine that notion.
                            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                            Comment


                              #15
                              I think that to be used as residential accommodation does not require it actually to be in use as residential accommodation.

                              Would you hope to escape the SDLT 3% charge because it was a new build and therefore not occupied and so not a dwelling house?

                              Comment

                              Latest Activity

                              Collapse

                              • Adverse possession
                                michael8626
                                Hi

                                If somebody was occupying land in adverse possession for a period of say 2005 to 2015 but never made a claim and then the land owner used the land for some time in 2016, then the original person in AP occupied from 2017 to date could they still claim AP with the Land Registry?
                                ...
                                11-10-2019, 13:38 PM
                              • Reply to Adverse possession
                                Jon66
                                There are transitional rules, it's in a practice direction. The dates are v important. Just google it....
                                14-10-2019, 02:02 AM
                              • Reply to Adverse possession
                                michael8626
                                Also Jon, I think I might have my dates wrong and this relates to just before this act was passed, so I might be under the old AP rules, did they differ much under the new system?...
                                13-10-2019, 23:20 PM
                              • Reply to Adverse possession
                                michael8626
                                That’s great Jon, thanks. I will have a read. Am I right in thinking the law changed regarding AP around 2002/2003 or was that just for unregistered land?...
                                13-10-2019, 23:12 PM
                              • Reply to Adverse possession
                                Jon66
                                Perhaps your solicitor should respond to the other side drawing their attention to the additional requirements the applicant will have to fulfil under the LRA 2002 Schedule 6 paragraph 5, because any application under para 1 will be vigorously defended as neither do they fulfil that criteria either....
                                13-10-2019, 21:40 PM
                              • Reply to Adverse possession
                                michael8626
                                Yes, I think that’s where we are at. Bring the situation to a head or hopefully to a close....
                                13-10-2019, 21:22 PM
                              • Reply to Adverse possession
                                Jon66
                                Read in full the land registry practice notes on adverse possession of registered land post 2002, and pay particular attention to point 7, which is a good starting point. You might find a direct access barrister of more use, Liz England or Rowena George are two good ones, or instruct your solicitor...
                                13-10-2019, 20:58 PM
                              • Reply to Adverse possession
                                michael8626
                                Thank you for all the replies. I have employed a solicitor as this originated from a land dispute. It just seems difficult to get a definitive answer. We just seem to keep writing letters ‘referring to comments from my previous letter’ and going round in circles. The only winners at present are...
                                13-10-2019, 12:00 PM
                              • Reply to Adverse possession
                                jpkeates
                                I agree that you need an expert, but there's a substantial difference between 10 years non-contiguous year's of possession and 10 years with a gap during which the actual owner had possession. The owner's possession would seem to end the previous period of adverse possession and a new period begins...
                                13-10-2019, 09:13 AM
                              • Reply to Adverse possession
                                nukecad
                                I wouldn't think so.

                                AFAIK they servre the AP, you contest it as the legal owner who has used the land and that's it.
                                You are still the legal owner, you still have an interest in using the land, a trespasser can't just claim it now, although they might have been able to earlier...
                                12-10-2019, 19:23 PM
                              Working...
                              X