“Part 1 of the GPDO – GENERAL Appeal Decisions” – 1 additional appeal decision (total = 1,605) …

The Part 1 of the GPDO - GENERAL Appeal Decisions document has been updated to include 1 additional appeal decision relating to householder permitted development legislation, for which the conclusions are as follows:

November 2022 - Code a01499 (appeal dismissed):

  • A C4 house in multiple occupation (i.e. a “small HMO”) can benefit from Part 1 of the GPDO. (*)
    [Quote: “Subject to limitations and conditions, Article 3 and Schedule 2, Part 1, Class A of the GPDO (hereafter referred to as Class A) grant planning permission for the enlargement, improvement or other alteration of a dwellinghouse. For the purposes of Class A, a dwellinghouse does not include a building containing one or more flats, or a flat contained within such a building [Article 2(1) of the GPDO]. However, it is not a condition of qualifying for Class A permitted development rights that a ‘dwellinghouse’ is of a particular type or used in accordance with Class C3. HMOs, including those which fall within Class C4, can benefit from the permitted development rights granted to dwellinghouses by the GPDO. [...] Although those works to facilitate the use of the property as a Class C4 HMO had been substantially completed by the time of making the application, its actual use on that basis had not commenced. That is corroborated by the appellant’s contemporaneous photographs which show the property to be vacant. At the time of constructing the rear extension, the property still benefited from a Class C3 use, which was not lost because of other contemporaneous work to facilitate a Class C4 use, or because the extension works were integral to the use of the property for use as a small HMO, or lack of single occupation at that time. In any case, even if the C4 use had commenced, that would make no difference in the circumstances of this case because in either scenario, it was still the enlargement, improvement or other alteration of a dwellinghouse, whether that be a Class C3 or a C4 dwellinghouse. That reasoning is supported by the London Borough of Brent v SSLUHC and Yehuda Rothchild [[2022] EWHC 2051 (Admin)] judgment. Therefore, on the balance of probabilities, the property benefited from Class A permitted development rights when the extension was built.”].
  • This appeal decision provides an example of where the Inspector concluded that a larger rear extension subject of an application for an LDC is not in accordance with the details that were approved (or submitted) during the prior approval process.
    [Quote: "In this case, the single storey extension was proposed to extend 5.9m from the rear wall of the original house, with a maximum height of 3.5m and an eaves height of 3m. In support of the application, a location plan was provided showing an outline of the proposed development along with existing and proposed floor plans, sections and elevations. The proposed plans show the extension as forming part of a single dwellinghouse with a kitchen and living room separated by an off-centre internal partitioning wall, and a corresponding rear elevation with a back door and window serving the kitchen and patio doors leading out from the lounge. As no objection was received in response to the Council’s notification, it confirmed on 12 September 2019 that prior approval was not required [Application Ref: 19/2943]. However, although remaining within the size parameters of A.1(g), the extension as subsequently built differs from the prior approval scheme. In that regard, the LDC plans show the property configured as a six-bedroom HMO, with the extension being laid out to provide two, single bedsitting rooms either side of a central internal partition wall, as well as part of the ensuite facilities for both and part of the hall leading to each of those room. The rear elevations show each bedroom with a window and door to the rear garden. The prior approval drawings also show the extension straddling both side boundaries, as per the party walls of the main dwelling, whereas the LDC drawings show the extension fully within the site boundary. The Council say that the prior approval extension is therefore approximately 400mm wider than that which is the subject of the LDC application. Moreover, although it is difficult to discern due to the scale of the location plan and the thickness of the delineating lines, the outer edge of at least one side of the outline to the extension appears to protrude beyond the site boundary, contrary to that argued by the appellant. [...] Paragraph A.4(11)(b) of the GPDO states that development must be carried out where prior approval is not required, in accordance with the information provided under sub-paragraph (2). It does not state that development must be carried out in accordance with what is required by sub-paragraph (2). Therefore, regardless of whether the appellant was required to provide elevation or section drawings, that information was provided along with a location plan showing the outline of the extension and floor plans. Save for the location plan, all of those plans are listed as the accompanying plans in the Council’s decision notice. The extension was not carried out in accordance with the information provided, as required by paragraph A.4(11)(b) of the GPDO. I’ve noted the caselaw reference [Lever Finance Ltd v Westminster City Council [1971] 1 QB 222] but the combined differences between that approved and that built are not immaterial as argued, not least because the latter is intended to facilitate a change of use of a single dwelling to a small HMO, which in turn may have its own impacts. [...] I therefore find, on the balance of probabilities, that the single storey rear extension as built was not granted planning permission by Class A of the GPDO under prior approval application reference 19/2943."].
  • Permitted development rights do not apply where the existing building or use is unlawful.
  • This appeal decision provides an example of where it was concluded that the fact that works on one part of a building or site are unlawful does prevent works on another part of the building or site from being permitted development. (*)
    [Conclusion: The unlawful single storey rear extension does prevent a change of use from C3 to C4 under Part 3 Class L].
    [Quote: “It was held in RSBS Developments Ltd v SSHCLG & Brent LBC [[2020] EWHC 3077 (Admin)] that the two sub-paragraphs of Article 3(5) are not mutually exclusive. Consequently, Article 3(5) is engaged because I have found under Appeal A that the building operations, namely the single storey rear extension, involved in the construction of the building is unlawful, and the LDC for the change of use of the building from Class C3 to C4 was sought after that extension had been built. In Evans v SSCLG [[2014] EWHC 4111 (Admin); [2015] JPL 589] it was held that since the GPDO defines ‘building’ as ‘including part of a building’ then if the building operations involved in the construction of any part of an existing building are unlawful, the permitted development rights granted in connection with the existing building do not apply. It therefore follows, that the planning permission granted by [Part 3] Class L did not apply. The appellant argues that the ‘existing building’ and ‘that building’ are the same so ‘part of a building’ would have to be read into ‘existing building’ as well as ‘that building’ and that consequently permitted development rights could subsist if they were in connection with the lawful part of a building. However, that would be inconsistent with the above; which is essentially that if part of the building is unlawful, the permitted development rights for the whole of the building are lost, until such time as any lawfulness issues are resolved.”].

Notes:

  • To view the conclusions, full summaries, and decision notices for any of the above appeals, please view the Part 1 of the GPDO - GENERAL Appeal Decisions document. As a member of the Planning Jungle website, you can view the decision notices for all of the appeals within the above document for no extra cost.
  • Any of the above conclusions marked with a "(*)" contradict other appeal decisions. The "Reference Section" within the above document indicates how many appeals have supported and contradicted each particular conclusion.