Retrospective planning question - Public forum - Planning Advisory Service (PAS)
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Started - July 2012
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Last activity - This week
Retrospective planning question
I've inherited a property which is basically a detached barn conversion in the countryside. It does have a clause in the planning consent to convert which was granted in 2001, when the property was converted to residential. This stated that the only person who could live in it full time was the applicant. Should they vacate, it would become a holiday let. That's fine but the original owner built on a conservatory extension without consent and looking at the original consent, all permitted development was removed anyway and it is outside of the town and country planning act whatever that means. The second issue is that I don't believe the extension is up to building regs, particularly with door heights. That said, the presence of it does add a lot to the property and it does look the part in my view. There have been no complaints from anyone and the planners are unaware of it as far as I know. From memory, it was built a couple years after the property conversion was finished. So, the issue is, where do we go from here if we want to keep it? Should we apply retrospectively? Assuming that 10 years have passed since consent, is this now unenforcable? It is not in a conservation area. Assuming it is and assuming permission is granted, what about the building regs issue? The problems may be quite findamental or they may be easily remedied. One option we have is to pull it down and build a proper conservatory in it's place. Would this need to be a copy of the original (a different looking one may be considered to be enforcable)? Any advice would be appreciated. In my humble view, the extension balances up the house quite nicely and looks the part due to being clad in cedar which has silvered up to match the stone of the barn. Certainly from a holiday letting point of view it adds a lot although of course, building regs become even more important when letting to others. Thanks in advance.
I think you need to speak with a planning consultant about regularising this site. Go to www.rtpi.org.uk for more details on how to find a chartered consultant which I'd recommend you do. Assuming the condition restricting permitted development rights was worded well, you would need to establish lawfullness with a Lawful Development Certificate for the extensions before you do anything else. If it's worded poorly, it might not be a valid/enforcible condition. Show it to a planning consultant and see what they say. The extensions would need to have existed for 10 years to be lawful, which you might not be able to demonstrate if the original permission is dated 2001, and the extensions were built a couple of years after. Following the establishing lawfulness for the extensions, you could then apply for planning permission to replace them with better built structures, which when being considered would need to account for the existing (now established) lawful extensions.
Perhaps I'm missing something here but I would have assumed that the extension only needs to prove four years existence to be considered lawful by virtue of time. Notwithstanding the existance of the condition removing PD rights, the development itself is a piece of operational development, to which 171B of the Act applies. You could seek to prove this via an LDC app if you want some surety, but you're not obliged to. It only becomes an issue if you LPA investigates the matter and seeks some evidence from you. If you wanted to remove and rebuild the extension you are basically starting from scratch. The fact that you had a lawful extension and then removed it means nothing in terms of replacing it. You'd better to substantially keep the structure and refurbish. Note the word substantial. If you removed a lot of the extension in the process of refurbing this could be considered removal and you might find yourself the subject of (valid) enforcement action. BC issues can be addressed via your LBA or a competent person. They are unlikely to be interested whether a valid planning permission applies or if it is lawful by virtue of time, they only want to see compliance with the building regs. That's my 2 pence worth, hope it helps.
Thanks for the comments. David, the way I read it is that as PD rights were removed under the original consent to convert, this would mean that 10 years would apply. I'm not sure what you mean by operational development. Could you clarify that for me please? Does that mean it's a functioning part of the building as opposed to a shed etc. I take the point re. refurbishing. Presumably this could be a plan of works over time, slowly upgrading with better materials / construction methods.
The removal of PD rights means that a development that would otherwise have fallen within the PD regs would now require full planning permission. The fact that they ignored this condition (and assuming that the extension actually would have met the PD regs) I would say is not actually relevant to the question of whether your extension is lawful. The way the statute of limitations works is that development becomes lawful after four years were it relates to operational development (ie, physically building something) or 10 years where it relates to anything else (such as a change of use (except for the creation of a dwelling) or non compliance with a condition). I think its unlikely that your LPA would pursue the matter on this basis because the remedy would be the service of a breach of condition notice. A breach of condition notice would have to require you to comply with the condition, which is not something you are able to do, ie, removing the extension does not in itself bring about compliance with the condition.
There are are two types of development which require planning permission - operational development, where as David has said involves physical building or engineering operations, or change of use of land or buildings. The extensions are operational development. A breach of condition can be enforced under S.171B(3) which simply refers to 'any other development' not covered by subsection 1 or 2 of Section 171B becomes lawful after 10 years. Davids right that if the development is lawful under a different subsection, then you could apply for an LDC. 171B(1) would define that the building works might become lawful after 4 years. First thing to do though is apply for a certificate of lawfulness for the extensions to regularise the situation. Then you could either repair the extensions and make them good, or reasonably apply for planning permission to replace them. In the grand scheme of repairing/replacing the extensions, the cost of getting lawfulness and then applying for planning permission is minimal - but gives you alot more security.
Crikey, a bit complex. I doubt to be honest that the extension built would have fallen into PD as it's probably too big relative to the the property although I have not investigated this. Is this a key point re 4 vs 10 years? Also, is the burden of proof on me to prove that the extension has been there for 10 years, or is it on the LPA to prove that it has not?
David raises an interesting legal point. The law regarding the applicability of the 10 year / 4 year enforcement periods is of critical relevance to the final outcome here, and also don't forget that these time periods run from "substantial completion". However, at risk of muddying the waters yet further I would point out that a breach of conditon does not necessarily have to be remedied by a breach of conditon notice. The authority may still prefer to issue an enforcement notice instead, and it is within its powers to do so. The burden of proof is on the applicant. If you need definitive legal advice before deciding on your approach then please let me know.