DC Casebook: DC Forum

Email your queries or your replies to earlier queries to casebook@haymarket.com or post them to Development Control Casebook Forum, DCS Ltd, Casebook Suite 1, Fullers Court, 40 Lower Quay Street, Gloucester GL1 2LW. Comment and post at PlanningResource.co.uk/forum/dc NEW QUERIES

A retrospective application for a chimney on a flat-roofed extension to a house was submitted last year. It is 2.5m high and 5m from the main dwelling. The application has remained undetermined for 18 months. Following publication of the recent revisions to the General Permitted Development Order 1995, the council has decided that it comprises permitted development under class G, part 1, schedule 2 because the flue is less than 1m above the main dwellinghouse ridge. Has the correct advice been given? Does class G.1(a) not relate to the roof on which the chimney is to be sited rather than that of the main dwelling? This is a more logical interpretation, otherwise chimneys could be allowed away from the main body of a house on single-storey extensions without planning control being required, leading to extensive structures up to 10m in height.

Class G.1(a) of the amended order states that development is not permitted if "the height of the chimney, flue or soil and vent pipe would exceed the highest part of the roof by 1m or more". This echoes the wording in classes A.1(b) and B.1(a). Class B allows double dormers where the rear part lies above the ridge of the rear projection of the house but below the main ridge. So by analogy, a chimney on a rear extension but projecting up to 1m above the main roof should also be permitted development. Furthermore, to avoid a lee effect, chimneys need to project above the main roof of a house. Because the chimney was built before 1 October and would not have been permitted development under the old rules, it is technically a breach of planning control. The council evidently considers that it would not be expedient to enforce against it following the rule changes.

What is the position regarding certificates of lawfulness for existing use or development for domestic extensions built before 1 October, when the amendments to the General Permitted Development Order 1995 became effective? If the development was completed under the old rules before 1 October, will an application for a certificate be judged under the new or the old order?

If development commenced under the old regime and is lawful, the change in legislation would not affect that status. The application should therefore be determined on the basis of the previous rules. Part of the council's assessment should, however, be to verify that the work began before 1 October.

Does class B, part 1, schedule 2 of the General Permitted Development Order 1995 refer only to the dwelling as originally built, or can alterations be carried out to the roof of an extension subject to compliance with the relevant limitations?

Yes. For example, the addition of a dormer to an extension built as permitted development could also be permitted development, because it would be covered by class B.

Outline approval was granted for residential development on a site in 2005. The applicant has applied to renew the permission. In accordance with the General Development Procedure Order 1995, as amended in 2006, details of the amount of development, an indicative layout, scale parameters and so forth were requested. Sketches were submitted showing 11 flats. The application was validated with all matters reserved. However, the layout is poor and a development in the form indicated would not be acceptable. Should the application be refused because the information is not sufficient to prove that the amount of development indicated can be achieved? Or should it be approved, making it clear that the additional information has no relevance? Should it have been advertised as a major application?

Because it is no longer possible to have an open-ended permission for "residential development", it is essential that you clarify what the proposal is for. The maximum number of flats for which permission is being sought should be agreed and the status of the supporting drawings should be clarified. From what you say, it seems that it should be agreed that these are illustrative. If the proposal is for ten or more dwellings it should be advertised.

The Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989 include a flat-rate fee for ancillary works associated with the formation of playing fields. The General Development Procedure Order 1995 includes a definition of playing fields that specifies a number of sports but does not include tennis. Does this definition affect the fees regulations? In other words, is the correct fee for the formation of tennis courts a flat fee of £335 or an area-based fee of £335 per 0.1ha?

Generally, it is inappropriate to import a definition from one piece of legislation to another. The Concise Oxford Dictionary defines a playing field as "a field used for outdoor team games". In that context, I would suggest that a tennis court is not a playing field, so this concession does not apply.

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