Hello,
I have also been looking at the implications of revised Class B Permitted Development changes as a result of The Town and Country Planning (General Permitted Development) (Amendment and Consequential Provisions) (England) Order 2014 - S.I 2014 No. 564, which came into effect on 6/4/14.
I had expected it would simply incorporate the High Court judgment in the case Waltham Forest London Borough Council v. Secretary of State for Communities & Local Government (2013) QBD (Admin) 18/6/2013 to clarify where the 20cm. setback was to be measured and it would be from the ‘imaginary red line’ that has been marked on the diagram you included . But as you say we are back to the original interpretation that the Department for Communities and Local Government (DCLG) has had since it first published the “Permitted Development for Householders – Technical Guidance” document in August 2010 (and indeed, less explicitly, since an Informal Views document published in January 2009).
The new S.I. makes it clear exactly where the 20cm. setback must be measured from, viz. the ‘outer edge’ of the eaves.
The measurement from the ‘imaginary line’ was, however, the indisputable law from 1 October 2008, the commencement date of The Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2008 - S.I. 2008 No. 2362 until 6 April 2014 with the commencement of S.I 2014 No. 564. This is because the High Court Waltham Forest Judicial Review was ‘declaratory of the law’. To explain - whilst Parliament may make laws, it is the Judges who interpret them. Because of the ‘doctrine of separation of powers’ Parliament cannot tell judges how to do their job, but the judges must respect and obey the laws passed in Parliament. Judges cannot change or rewrite law passed in Parliament and they cannot make their own laws. However, in their duty to apply the laws as enacted they must interpret the anomalies and ambiguous wording in statutes and statutory interpretation is one of the main tasks of the judges. In coming to a judgment, they simply discover and declare what the law has always been. This means that case law operates retrospectively since the law as declared, has always existed since enactment.
So I do not agree with your contention ‘it is unclear whether LPA’s would determine applications for PD loft conversions in line with the conclusions of the appeal decision or new legislation’”. The law as it stands today requires them to apply the ‘outer edge’ rule. If they do otherwise, with a properly presented appeal, it will be overturned.
Interestingly, all loft conversions completed within the four years prior to 6 April 2014, that did not have the protection of a Lawful Development Certificate issued under Section 192 of the Town and Country Planning Act 1990, and have been erected using the measurement criterion set out in the Technical Guidance are nevertheless unlawful structures and liable to enforcement action. I would not be surprised if Waltham Forest, who have been very vigorous in the past in insisting on the ‘imaginary line’ measurement, were enforcing such breaches. I do, however, believe that councils such as Waltham Forest will now have difficulty if any cases go to appeal, as I would expect the Planning Inspectorate would regard S.I. 2014 No. 564 as a material consideration if planning permission were sought to regularise the structure. Possibly that is why the DCLG have maintained their original interpretation of where the measurement should be taken. If the DCLG had presented a S.I. to parliament using the ‘imaginary line’ measurement and there were enforcement cases against those who had used the ‘outer edge’ rule prior to 6 April 2014 then there would be no availability of a material consideration in the form of S.I. 2014 No. 564. If a council such as Waltham Forest were vigorous in enforcement action, then I think sooner or later an aggrieved householder who had followed the DCLG advice would have sued the DCLG because of it, and, in my view, have a very sound case when one considers how the Technical Guidance was presented. The Guidance was adamant about how the measurement was to be taken and advised “where there is any doubt as to whether a development would be permitted development, advice should be sought from the local planning authority” and played down the need to apply for a Lawful Development Certificate and had no caveat to say it was the Courts that were the final arbiter. It gave the impression that their word, as the Government Department was final and the LA will decide on complex cases if necessary.
Unlike you I have always thought the Waltham Forest interpretation of S.I. 2008 No. 2362, as confirmed by the High Court, was correct. It always seemed to me that “the interpretation advanced in the guidance adds a gloss or qualification to the condition which is not found in the GPDO itself” to directly quote Judge Fraser. Regrettably, I believe that applies to several parts of the Technical Guidance. Perhaps it always was the intention of the DCLG for the set-back measurement to be taken from the ‘outer edge’ but poor drafting of the 2008 amendment said otherwise. I always considered the Inspector who dealt with Appeal Ref. APP/F5540/X/09/2112522 got it right according to the law at the time and he simply interpreted The Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2008 - S.I. 2008 No. 2362 without the embellishment of the Technical Guidance which had not been published at the time.
In your post you do not show the revised article B.2(b) in full. You omitted the interpretation -
“B.4 For the purposes of paragraph B.2(b)(ii), roof tiles, guttering, fascias, barge boards and other minor roof details overhanging the external wall of the original dwellinghouse are not to be considered part of the enlargement.”.
I think this needs to be considered carefully as well. Taken as a whole, I believe that this will prevent Waltham Forest and those who adopt their stance, who I understand have now been interpreting the 18/6/2013 judgement to refuse L-shape roof loft extensions, on traditional terrace Victorian houses that have an ‘outrigger’ back extension with a lower roof at right angles to the main roof, by insisting that the part of the eaves at the rear of the main roof that overhangs the subordinate roof cannot be bridged, so that there has to be either a ’tunnel’ or an insert to maintain any of the original eaves overhang of the main roof. I believe that S.I. 2014 No. 564 will now prevent that interpretation. I have no doubt there will be an enforcement appeal sometime soon from Waltham Forest on this point.
One of the aspects of the Waltham Forest case I found disquieting was that in the original Planing Inspectorate Enforcement Appeal (APP/U5930/C/11/2155069) costs were quite properly awarded against Waltham Forest Council because of their unreasonable behaviour in not providing any proper justification for their position and in attempting to introduce other matters and aspects that were not subject of the enforcement notice. Unfortunately the High Court overturned that on application by Waltham Forest, but the Council had failed to explain that the reason costs were awarded against them was because of their unreasonable. Improper, in my view, considering that the applicant who had the costs awarded to him was not a party to the Judicial Review and would have clearly had costs in defending his position against the unreasonable behaviour of Waltham Forest at the enforcement appeal stage.
Whilst the behaviour of Waltham Forest is regrettable and brings them into disrepute I think the DCLG also culpable. They are constantly issuing poorly drafted S.I.’s that is clearly causing confusion amongst experienced professionals, resource wastage for the public as taxpayers and difficulty for householders who are seeking to use permitted development rights. Reading the most recent S.I.’s it is clear that the DCLG have taken no heed of the comment of Judge Fraser in the Judicial Review “It is important to remember that these provisions are intended to be relied upon by householders amongst others and in such circumstances one would expect common words to be given their common meaning unless there was something which clearly indicated to the contrary”. It would have helped to have clear definitions of terms used, such as eaves, etcetera, and may have prevented so much time and unnecessary expense where for instance the Redbridge Planning department did not understand the difference between the eaves and the ridge and “interpreted the eaves to mean the edge of a roof which also extends to the highest part of the proposed pitched roof” (that is called the field of the roof) - Appeal Ref. APP/W5780/X/09/2106872
I note the Technical Guidance page you included in your post is from the January 2013 version (a further three versions were published in October 2013). The most up to date version was published on 8 April 2014 -
fhttp://www.planningportal.gov.uk/uploads/100806_PDforhouseholders_TechnicalGuidance.pdf
Finally to misquote someone - I’m sorry this post is long, but I did not have time to make it shorter.
Brian.
