Casebook: Development Control Casebook Forum

New queries

Class A.1(g), part 1, schedule 2 of the General Permitted Development Order 1995 says that permission is required to enlarge a dwelling where "it would consist of or include the erection of a building within the curtilage of a listed building". Article 1 of the order states that a "building" includes "any structure or erection" and with certain exceptions "includes any part of a building, as defined in this article". This implies that extensions may be classed as buildings and so any extension to a listed building needs planning permission as well as listed building consent.

The latest version of Planning: A Guide for Householders explains that permission is required for extensions to listed buildings, whereas previous editions did not. So do all such extensions now require permission? AB.

As noted in Development Control Practice 4.3421, for the reasons you give it may be fairly inferred that all extensions to listed dwellings have no class A permitted development rights and will require express permission. However, since nearly all works carried out to a listed house would require separate listed building consent in any event, this is largely of academic interest.

The inclusion of the phrase "within the curtilage" creates some difficulty, since this would normally refer to free-standing buildings. But as class A only applies to works to a dwelling, there can be little doubt that it cannot refer to garden buildings as these are dealt with separately in class E. In my view, the ODPM's latest guidance is correct. PM.

A householder wishes to rebuild a rundown garage measuring 64m3 on its existing site to the same dimensions and external appearance. It forms part of the original dwellinghouse built before 1948. An extension of around 140m3 was added in 1996. Does the rebuilding of the garage count as development within the meaning of section 55 of the Town and Country Planning Act 1990 or would it be exempt from planning control? TP.

Under section 55(1A) of the act, "development" covers building operations including rebuilding. But by virtue of section 55(2)(a) (ii), works for the maintenance, improvement or other alteration of any building that would not materially affect its external appearance are excepted.

While eligibility for this exemption will be a question of fact and degree, the courts have held that it does not confer unlimited rights to rebuild dilapidated buildings. The rebuilding of the garage will therefore involve development. As the original dwelling has already been extended and it would appear that the permitted development allowances have been exceeded, express permission will be required. PM.

I submitted an application for a certificate of lawfulness for the use of a curtilage building as a separate dwelling together with evidence that it has been occupied independently of the existing dwelling for 17 years. The new dwelling is self contained and has all normal facilities for day-to-day living. However, the local authority argues that it is ancillary accommodation and is likely to refuse the application. While family members of the main dwelling have historically occupied the building, I consider that the authority's approach is incorrect and that the dwelling constitutes a separate planning use. What is your advice? DW.

In Uttlesford District Council v Secretary of State for the Environment and White (1992), it was held that the use of an outbuilding in the curtilage of an existing dwellinghouse for primary residential purposes does not involve a material change of use where it is used in conjunction with the dwelling. The essential question is whether the use of the curtilage building has created a separate planning unit.

Where such a building is occupied by someone unconnected with the original dwelling or has been severed from it and has its own curtilage, a separate dwelling will have been created. But the line taken in the Uttlesford case and later appeal decisions suggests that use by family members does not constitute a sufficient degree of "separateness", even where such a person lives independently from those occupying the main dwelling. The local authority's approach therefore appears to be correct. PM.

Previous queries

NW queried whether a planning authority is legally able to sell on details of an applicant's identity to third parties (Planning, 25 November, p23).

When processing personal information, local authorities are required to comply with the "eight data principles" set out in the Data Protection Act 1988 and must register the use of such data. This will confirm exactly what the authority does with the information. Failure to comply with these principles means that the law has been broken.

Principles 1 and 2 state that any personal data shall be processed fairly and lawfully and that data supplied for a specific purpose, such as a planning application, cannot be used for another purpose without the "data subject" being both aware of the proposed use of the data and supplying written agreement to this use. Application forms or guidance should indicate what happens to the data and make it clear that the information will be placed on the council's website.

If an authority decides to sell this information, it must seek written approval from the applicant. Although weekly lists can be reproduced on council websites and the planning application form and drawings are available to be viewed by the public, it is an offence to sell the information received by the planning authority to other parties if any lists produced include the details of "living individuals" without their written approval.

Companies are not covered by the act. Under the Freedom of Information Act 2000, local authorities should publish what information is available and whether or not there is a cost in obtaining it. If lists are sold, they should be on the publications list. If they are not, they may be available under this act at no cost. MM.

- E-mail your queries, or your replies to earlier queries, to Alternatively, post them to Development Control Casebook Forum, Development Control Services Ltd, Suite 1, Fullers Court, 40 Lower Quay Street, Gloucester GL1 2LW or fax them to 01978 869355.

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