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

I would welcome your opinion on the meaning of "rear wall of the original dwellinghouse" in the context of a traditional L-shaped Victorian house for the purposes of class A.1(e), part 1, schedule 2 of the amended General Permitted Development Order 1995. Some authorities consider this to be the rearmost original wall. Others apply the length restriction in class A.1(e) to both the main rear wall and the rear wall of any rear extension. In doing this, they are treating both as rear walls. Which is correct? JW.

Either interpretation is possible, but until case law decides I would favour the latter. It is unfortunate that the legislation is not clear as the UK has a large stock of such homes. JH.

The question of what constitutes development has been raised recently in two enforcement enquiries. The first related to a shed that had been placed, but not fixed to the ground, in front of a dwelling. It was considered that this was development and the shed was removed. In the second case a wooden playhouse on stilts, again not fixed to the ground, was considered a chattel rather than a development. The playhouse was located in a rear garden but within 20m of a highway. There was very little difference in appearance and size between the shed and the playhouse. I wonder if any other councils have come across this anomaly and could advise on how to deal with such matters. JJ.

Development Control Practice 4.31 looks in some detail at this issue. The lead court case is Cardiff Rating Authority v Guest Keen Baldwin's Iron and Steel Co [1949]. The main issues to be considered in deciding whether something is operational development are size, permanence and attachment to the ground. Each case has to be decided on its own merits. Inevitably, these matters are frequently not straightforward. Without knowing the full circumstances of these cases, it is impossible to comment in much detail. However, if the shed would have to be broken up to move it whereas the playhouse would not, that might be sufficient to justify treating these cases differently. JH.

In 1995, a council served an enforcement notice on a caravan, which was then removed. The owner then built a chalet that he occupied until his death in 2005. An application for a lawful development certificate was submitted by new owners in September 2005 and this was refused in October last year. As part of the appeal evidence, three signed affidavits supporting its occupation were submitted. The council requested the appeal be put in abeyance while a fresh application was submitted, which it would support. It then changed its mind and asked for the appeal to proceed on the grounds that the 1995 enforcement notice still applied because it amounted to a "change of use from general agricultural use to private domestic use by the siting and residential use of a caravan". It now wants the appeal withdrawn, claiming that the notice is still extant. If it is not withdrawn, it proposes to claim for costs based on unreasonable behaviour. Is it unreasonable to invite the inspector to determine the matter and rule on the point of law? GK.

Under the provisions of section 191(2) of the Town and Country Planning Act 1990, as amended by the Planning and Compensation Act 1991, an enforcement notice "trumps" lawful development rights. So immunity cannot be gained under the four-year or ten-year rules if there is a valid enforcement notice against that development. Had a further caravan been brought onto the site after the removal of the original one, there would have been no question of the occupier gaining lawful development rights. In this instance, however, the erection and occupation of the chalet is a different breach of planning control from the siting of a caravan, so this argument does not arise. The council may consider that the chalet is actually a caravan, bearing in mind the broad definition in the Caravan Sites and Control of Development Act 1960 as amended. It would be advisable to produce evidence to counter that argument in preparing your appeal. JH.

PREVIOUS QUERIES

ML enquired about the maximum permissible height of a flat-roofed outbuilding under the recently amended General Permitted Development Order 1995 (Planning, 26 September, p25).

- JH's answer to ML's query about whether a 3m-high flat-roofed outbuilding should have "false" eaves to meet the requirement of class E.1(e), part 1, schedule 2 of the order seems to assume that a flat-roofed building must have eaves. Chambers Dictionary defines eaves as "the projecting edge of the roof". If it has a parapet or even a flat fascia, a flat-roofed building does not have any eaves so would not have to comply with class E.1(e). AR.

- I accept that my answer assumed that the outbuilding would have eaves, so this comment is helpful. However, the impact of a building will not vary significantly according to whether or not it has eaves, so it is ludicrous that this factor should determine the height to which it can be built without needing permission. JH.


Have you registered with us yet?

Register now to enjoy more articles and free email bulletins

Sign up now
Already registered?
Sign in

Join the conversation with PlanningResource on social media

Follow Us:
Planning Jobs