GPDO definition of dwellinghouse started, partially complete or signed off - Public forum - Planning Advisory Service (PAS)

Hi Richard

Really benefical yet annoying platform this as I was an hour into replying got distubed came back to my PC to find the page closed down with no auto save - unlike word !!!

Anyhow here goes again.  I will deal with your points in reverse order of your presenting of them.

You also need to check of course that there are no planning conditions, S106 restrictions, or article 4 directions restricting PD on the specific property in question - NA

Note - I assume you are talking about Part 1 PD Rights, and if you are please note the limitation: - THE GPDO AND RECENTLY INTRODUCED AMENDMENT AS AT 2020

Permitted Development A. The enlargement, improvement or other alteration of a dwellinghouse.

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 G, M, MA, N, P, PA or Q of Part 3 of this Schedule (changes of use);

Sometimes in planning the only consistency is that everyone agrees that this is a question of fact and degree in each case. For more background you could read from para 54 of this case perhaps - https://www.bailii.org/ew/cases/EWHC/Admin/2022/2051.html - Yes I have read this and others plus today I contacted Dr Bowes assistant.

The essence of this is that PD rights can only be relied on once the property has become a dwellinghouse. WHERE DOES PLANNING LAW STIPULATE THIS ?  IT DOESN'T AS I WILL DEMONSTRATE SHORTLY ! - This is a combination of physical condition and material use. A building site is not a dwellinghouse either in physical terms or use.  I have 2 broad counter arguments to this 1.  A dwelling house on paper is a dwelling house irrespective of status of construction given the rights are applied to it being a dwelling house as an entity be it physical or concept and not just it being finished, Nowhere in planning law does it stipulate that the dwelling house needs to be any particular stage and A this is the consistency that is lacked - WHILST B there are differing intepretations on an LA by LA basis, from memory LA's in Ipswich applied PD to not started, Wrexham applied PD to foundations and Bolton\Burnley\Blackpool\Bury\Blackburn (at least somewhere up there beginning with a B) applied PD to shell completion thus these have all allowed GPDO to be applied to projects in varying stages before completion, beit shell, foundations, PP etc thus it is that consistency which irrepesctive of the Gravesham case fails once more.

Let me elaborate further, now I am  no planning lawyer, however I can read !

The Town and Country Planning (Use Classes) Order 1987

• The Use Classes Order was made in exercise of the Secretary of State's powers under the predecessor provision to what is now section 55(2)(f) of the 1990 Act, and has been amended since.

• In its current form, it defines Classes C3 and C4 as follows:

Class C3. Dwellinghouses

Use as a dwellinghouse (whether or not as a sole or main residence) by—

(a) a single person or by people to be regarded as forming a single household;

Thus can be seen from the above that no differentation is made as to what constitutes a dwelling house, ie the 3d form built or 1d form on paper vis a vis scheme approval !

Now..

THE PLAN INSPECT's GUIDANCE NOTE

3. The test for whether a property is eligible to use the permitted development right is whether it can be considered a "dwellinghouse" within the context of the GPDO. This will depend on the facts of the case.  I do not understabnd this phrase Richard in this context sorry !

4. Case law [footnote: Gravesham] has established that the distinctive characteristic of a "dwelling house" is its ability to afford to those who use it the facilities required for day-to-day private domestic existence. Whether a building is or is not a dwelling-house is a question of fact.  AGAIN I do not understabnd this phrase Richard in this context sorry !

Now regarding the Gravesham case specifically ...

• The first issue concerns whether a building is a "dwellinghouse" for the purposes of planning law. The principles to be derived from Gravesham on that question are well known, and have been reaffirmed many times in subsequent caselaw. I summarise the relevant principles as follows:

i) A dwellinghouse is a unit of residential accommodation which provides the facilities needed for day-to-day private domestic existence (see further Innovia at [27]-[28]; Rectory Homes Ltd v Secretary of State for Communities and Local Government [2020] EWHC 2098 at [53], per Holgate J);  YES THIS IS FINE BUT WHAT HAS NOT BEEN SOUGHT NOR PROVEN IS THAT GPDO RIGHTS SHOULD APPLY TO THE 1D APPROVED PP FOR THAT SCHEME AS PER OTHER LA'S AS MUCH AS THEY DO TO THE 3D BUILT ENVIRONMENT FOR THAT SCHEME !

ii) whether any particular building is or is not a dwellinghouse is a question of fact; and

iii) a factual assessment of whether or not something is a "dwellinghouse" may require consideration not only of whether it provides the facilities needed for day-to-day private domestic existence, but also consideration of the actual use to which it is being put. Thus a building which, although possessing all those facilities..... WHICH AGAIN REMINDS ME OF THE NEED TO DEMONSTRATE THAT WITHOUT LAW STATING AS MUCH THEN THE FACT THAT THE 1D PAPER DESIGN INCLUDES ALL OF THE FACILITIES OF A BATHROOM\BEDROOM\FRONT ROOM\KITCHEN ETC CAN THEN DEMONSTRATE THAT THE DWELLING HOUSE EXISTS IN PRINCIPLE THUS SHOULD HAVE GPDO RIGHTS APPLIED TO IT FROM THE MINUTE THAT PP IS GAINED NO ?

• The third of those principles should not be understood as requiring a dwellinghouse to be used in any single way. It merely indicates that the nature of the use to which a building is put is one of the factors that may be taken into account in making the required factual assessment as to whether or not it is a dwellinghouse. THUS THE FACT THAT THE 1D PLAN CLEARLY SHOWS AND STATES A DWELLING HOUSE AS SUCH IRRESPECTIVE OF BUILT STATUS SHOULD AGAIN QUALIFY IT FOR GPDO RIGHTS FROM APPROVAL ONWARDS SURELY NO ?

i) In Gravesham itself, McCullough J noted that a variety of uses were perfectly consistent with the status of a building as a "dwellinghouse". A dwellinghouse would not lose its character as such simply because it was vacant.  Therefore the fact that the 1d paper environment does not yet physically exist also means that this is still a dwelling house for the pruposes of this argument surely ?

• In Blackpool Borough Council v Secretary of State for the Environment (1980) 40 P&CR 104, This conclusion did not entail any finding that a dwellinghouse must be occupied by one family or household if it is to retain its status as a "dwellinghouse" (for the purposes of the GPDO or otherwise) as a matter of law: 
  •  
  • 68:55
  • The Claimant rightly accepted before the Inspector that a property cannot fall within the C3 Use Class unless it has the physical characteristics of a "dwelling" as defined in Gravesham and is used in a manner falling within that Class (see [30] above). It follows that a property might properly be described as a "dwelling" in accordance with the physical criteria given in Gravesham without being used within the parameters of Class C3.  THIS SURELY IS A TESTATMENT TO THE FACT THAT THE 3D DWELLING DOES NOT NEED TO EXIST TO QUALIFY FOR GPDO RIGHTS NO ?

I'd be very interested to hear further views on this matter as I consider planning law to be that if it is not 100% clearly wrote then the law does not exist and the details are subject to ruling and challenge no ?

Zoren

Hi Zoren

My advice was offered in good faith. It's OK that you have further questions but please remember this is a professional community, not Twitter.

I am aware that several LPAs will determine that enforcement action is not expedient in cases where a new house is built complete with e.g. a conservatory that would have been PD at a later date. But this is not the same as agreeing that PD rights apply to the 'paper environment' as such - it is simply accepting that in many cases there is no harm as a consequence of a technical breach.

I think if you want to pursue the point then independent professional advice is your next port of call. If you do get support for your view that PD rights can attach to plans on paper then please do share that here in due course.

Take care 

Zoren

In terms of benefitting from GPDO rights for dwellinghouses then it is not just the actual building being completed or substantially completed but also whether the use itself has commenced as Richard pointed out.  There is a lot of case law on this as like any law or regulations (especially planning) it is open to interpretation.  The law is by no means perfect.

In most cases it is easily determined as to whether the property is in use as a dwellinghouse as people buy homes once they are completed and as soon as they move in, they can then benefit from PD rights.

When I first started in planning back in the 1970's I was asked numerous times about erecting a conservatory many of which included new build homes currently being built where they wanted the conservatory built at the same time as the house.  If a conservatory was not shown on the approved plans then invariably they were advised that planning permission was required.   Although the GPO/GPDO has changed a lot (apparently made simpler!!!) that advice remains correct.

In those days we simply responded by letter, but the answer was invariably the same.  Until you actually occupy the building/house then it would require planning permission and some small house builders would actually do that for them and apply for planing permisison.  After all in thiose days planning permisison was free to apply for and was fairly quick.

Obviously if they could wait until they moved into the property ,we would advise based on the information submitted ( we would ask for simple plans) it was PD, but only once they occupied it . 

I suspect not everyone waited, or just ignored the advice we gave and then years later when they then sold on the house, they wouold be back asking us to rush through a retrospective planning application as the purchasers solicitor had noticed that the conservatory had not got planning permission and becasue of this, was now holding up the sale!

However, in some cases it is more difficult to determine, for example if it is self build and you could actually be in occupation before the property is fully completed. In those circumstances it can get a bit complicated and you would need to see exactly how th eproperty was occupied and what facilities it provided and then make a judgement on whether it could be considered to be a dwellinghouse or not,  but I suspect this is not relevant in your case.

Nowadays queries like your about PD rights are normally dealt with by means of an application for a Lawful Development Certificate under s192.  This will not be judged in terms of compliance with planning policy but by planning law and whether or not you can do the works lawfully without the need for planning permission (or some other consent).  As such, scuh applications are often dealt with by a lawyer as opposed to a planning officer.

So in answer to your original question, it needs to be substantially completed and occupied with people living there.

Hope this helps.

Mark

Mark

Thanks for that and my apologies for the delayed response I was not aware of your post.

To cap this off, everything that has been said by both you and others is clear, I am familiar with the Gravesham case and others, the question was actually for a self build which was approved PP at the time 2021 'ish the new GPDO 'extra lift' law was introduced.  I was attempting to retrospectively understand the law.

I was delayed by circa 2 years whilst the LA attempted to block PP as they misadvised on matters which then created extra delays that stopped me from building and occupying the scheme thus therefore benfitting from PD and going up anpther level to change the flat roof to loft space.

I think that the only option is to go back in and try to gain PP for it.

Thanks all