CASEBOOK: Development Control Casebook Forum

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Planning permission has been granted for a side extension to a dwelling. The applicant now wishes to replace a conservatory, which in its own right would be permitted development under class A, part 1, schedule 2 of the General Permitted Development Order (GPDO) 1995. Does the fact that permission has been given for the extension, which takes the overall volume above 70 cu m, remove rights for any other class A additions, even if work has not yet started on the approved extension? Can a householder use up all their permitted development allowances and still build an approved development? IH.

A similar matter was considered in R v Secretary of State for the Environment, Transport and the Regions ex parte Watts (2002). The householder had permission for an extension but also wanted to build a roof extension at the same time under permitted development rights. The planning authority maintained that although the roof extension was in itself permitted development, it exceeded the GPDO tolerances when taken together with the authorised extension and thus required express planning permission.

On appeal against an enforcement notice, the inspector concluded that all the works were being carried out as a single development and that since the combined cubic content exceeded the relevant allowance, the roof extension was not permitted by the GPDO. However, the court held that it was the timing of such building works that was important.

Where development is carried out in accordance with the GPDO, its support is required until the works are substantially complete. But if before that happens the dwelling is otherwise enlarged, improved or altered so that the total cubic content of all the works exceeds the relevant allowance, the potentially permitted development would no longer be protected by the GPDO. In your case, therefore, it would follow that the conservatory could be built as permitted development before the extension but not afterwards. PM.

I am dealing with an occupancy condition in which the word "agriculture" has been replaced by "pisciculture" and reference is made to its definition in the Town and Country Planning Act 1971. However, the act contains no such definition. Does that make the condition ultra vires? CP.

I can find no reference to "pisciculture" in any legislation or related guidance. The best dictionary definition I can find is "the breeding, hatching and rearing of fish under controlled conditions". Section 55 of the Town and Country Planning Act 1990 and part 6 of the GPDO both refer to "fish farming", which to my mind is the same thing. This is defined as the "breeding, rearing or keeping of fish or shellfish", including any type of crustacean or mollusc.

As to whether the condition is ultra vires, I think you could argue that since there is no definition of pisciculture for the purposes of planning control, the condition fails the tests of precision and enforceability required by Circular 11/95. However, I am not certain that this would be sufficient to have the whole condition struck down. PM.

We have received a planning application relating to a development on land which is mainly located in an adjoining district. I believe there is legislation stating that in a case such as this the entire application can be dealt with by the adjoining district, which will then consult us. Please can you confirm whether this is correct? GD.

As far as I have been able to establish, there is nothing on this in the Town and Country Planning Act 1990 or related legislation. The main provisions for dealing with planning applications are shared between the Applications Regulations 1988 and the General Development Procedure Order (GDPO) 1995, but these are silent on this matter.

The only reference I have found to cross-boundary applications is in the Fees for Applications and Deemed Applications Regulations 1989. This indicates that where an application relates to land in the area of two or more planning authorities, the fee shall be paid only to the authority into which the largest part of the site falls. It might follow that the recipient of the fee would be the determining authority, having consulted the other authorities within whose area the application site also lies.

However, in an appeal case in Kent decided earlier this year (Planning, 7 February, p19) concerning a development straddling a local authority boundary, the inspector took a different view. He concluded that as both authorities were district planning authorities and section 5(1)(c) of the GDPO states that an application for planning permission shall be made to the district planning authority, a separate planning application had to be made to each authority. He did not consider that the fees regulations imply that the so-called "lead" authority automatically assumes any jurisdiction over the neighbouring authority area. PM.

I am dealing with an extension to an industrial building under class A, part 8, schedule 2 of the GPDO, which limits permitted development rights to 25 per cent of the size of the original building or a maximum increase in floorspace of 1,000 sq m. The proposed extension is a canopy with no walls. If we wish to enclose the space underneath later, would this still be permitted development or would the changes be held to materially affect the external appearance of the building and thus require planning permission? IC.

In my view, there is an apparent contradiction between the physical limitations set out under class A and the requirement that the development should not materially affect the external appearance of the premises. This is acknowledged in the recent review of permitted development rights commissioned by the ODPM, which highlights the fact that many feel that the external appearance test effectively removes many of the rights granted under this class.

The review (Planning, 12 September, p1) calls for clarification that the test applies to an industrial site as a whole rather than to an individual building. This seems to me to be a more reasonable approach. In these circumstances, provided the additional works to the canopy do not result in the dimensional tolerances being exceeded, I think that completion of the extension would be classed as permitted development. PM.

- Send your queries or your replies to earlier queries to: Development Control Casebook Forum, Development Control Services, Suite 1, Fullers Court, Lower Quay Street, Gloucester GL1 2LW. Alternatively, fax them to 01978 869355 or e-mail them to

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