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Lawful Development Certificates – you tell me!

by on March 12, 2009

Please Note: This is a 2009 blog post to local authorities about how best to use Lawful Development Certificates.

If you’ve arrived via Google or another search engine looking for basic information about a Lawful Development Certificate and what they do, you can find this information on the Planning Portal.

 

 

I had a very interesting conversation yesterday re the use of Lawful development certificates. More accurately the chat was mostly about how they could be used far more than they are currently. With my CLG hat firmly on we are trying hard to deliver an understandable planning process and reduce the burden on citizens who wish to make improvements to their homes.

In particular we’re tasked under Killian Pretty to improve the information available to citizens via LPA websites and specifically around the question “Do I need Planning Permission”.

I’d be very interested to know your opinions on the role of LDCs and the pros and cons from a user or LPA perspective.

78 Comments
  1. Lawful development certificates offer a great opportunity to formalise the planning process for thousands of home owners who don’t need to go through the full planning regime for minor developments.

    It’s going to be tough for home-owners to see the benefits of ‘stress free’ home renovation and use Lawful Development Certificates if so little is known of them from the people they turn to for advice.

    I wonder how many planning applications are made and processed each year unnecessarily due to lack of awareness of Lawful Development Certificates and Permitted Development Rights from LPA’s and the general public.

    Are there any local planners out there who can confidently say they fully understand Permitted Development Rights?

    • Stephanie Malik permalink

      I keep having to tell people who want to be sure their development meets the PD requirements to apply for a LDC. I feel justified as it can take a lot of my time so I feel the Council should get some money from it. Our Borough is densely populated, mainly Zone 1 Inner London & a lot of high value property so PD development can become contentious quite quickly and the LDC solves this problem.

      However, the October 2008 amendment to the 1995 Act is a real spur to more CLD applications. The determination of PD is now hazier than ever and often debatable. I particularly find the the need to match existing materials is a real minefield. A literal interpretation would involve requiring the replacement of 1960s aluminium windows in a Victorian terrace rather than a return to the original wood windows which would be preferable, especially in a Conservation Area.

      • Keith Allen permalink

        If you are genuinly serious about ‘releasing the burden on Citizens who want to improve their home’ why are some Local Authorities allowed to abolish the free planning enquiry service? In West Berkshire, for example, we are now expected to complete a 4 page ‘Application for a Lawful Development Certificate’ and submit it with a site location plan and £75 fee. This is a consequence of financial restrictions imposed from central Government and will only be seen by most Citizens as another layer of bureaucracy and taxation by stealth. Instead of encouraging responsible open behaviour it could actually promote a black market where improvements are not done properly. How is this ‘releasing the burden’ and why is there so much inconsistency between different Local Authorities ? Why can’t the free planning enquiry service be subsidised by the cost of a full planning application ? Please don’t be another person who tells me it is nothing to do with you ?

      • PortalDirector permalink

        Keith,
        There are interesting and diverse opinions about the role of LDCs and their like throughout this discussion.
        Some clearly feel they are unnecessary, either something needs permission or it doesn’t and that if it doesn’t and the customer still wants a piece of paper then why shouldn’t the LPA charge for the service?

        From my perspective it’s a key part of the Portals job to make what is and isn’t permitted much clearer. Government has reduced the circumstances in which permission is required for a typical householder, admittedly things could be a little clearer and a lot of our effort will going into this work in the coming months.

      • JOHN CLAYTON permalink

        I believe Lawful Developement rules should be clearer. I had an application refused last week because i specified a felted roof on a dormer window as part of a loft conversion.
        The reason for refusal was because there was no other identical material existing on the house, when i explaind that it would be similar in colour to the roof tiles, this was not accepted, when i brought to their attention the communities and local governments point that flat roof dormers close to the apex of the roof should be considered acceptable because it can bearly be seen from the ground, they said it was not their view.
        When i made a new application and changed the roof covering to lead, it was accepted because it matched the lead flashing that existed around the chimney and the valley gutters.
        I brought this point up with three other authorities i regularly make applications to and they did not understand what i was talking about.
        I note the point made by Martin Goodall that LDC’s should only be used when there is a genuine doubt but unfortunately in my opinion that until the rules on LDC’s are absolutely clear and until these deliberate misinterpretations by local authorities can be governed and overruled by point of law directions, then a LDC application must always be made to protect the applicant and planing consultant alike.

    • Ashley Jones permalink

      The whole idea of PD rights is to free up the planning system. If a development is lawful why do you need a certificate to prove it? The Government should have made the new PD rights readable in plain English so that applications of any sort are not necessary.

      • Ken Snape permalink

        Ashley

        Just a quick note to say that I could not agree with you more!!

        I get so many requests to advise potential clients whether or not X is PD: so one reads the booklet or goes online and “does the research”.

        This is your point! It shoulkd be as simple as that!

        I would only add to your comments that the working groups should expand the secenarios we encounter so as to reflect a “truer” picture of the smaller projects that are the “bread and butter” of our profession.

    • Prof J H Flavell permalink

      I have experience of going through the whole planning process for conversion of an animal house attached to the main house with access from within the main house and used for domestic storage for over 20 years and then being told that I would have to advertise for 6 months for commercial use. Which of course we clearly would not wish to do, and then discovering the the Lawful Certificate of Existing Use approach for which I have to pay another fee.

      Why this need to advertise baffles me and my architect, in this case it just does not make sense.

    • JOHN CLAYTON permalink

      IS IT POSSIBLE TO INSIST A COUNCIL ISSUES A LAWFUL DEVELOPEMENT CERTIFICATE IN A QUICKER TIME THAN 8 WEEKS

      MOST OF THE LOCAL AUTHORITIES WAIT UNTIL VIRTUALY 7 WEEK AND SIX DAYS WEEK BEFORE ISSUEING

      AS AA LAWFUL DEVELOPEMENT CERTIFICATE IS A QUESTION OF FACTUAL MATTERS, I DO NOT SEE WHY IT SHOULD TAKE SO LONG

  2. Anthony C Tyler permalink

    Sir
    My Company is deliberating applying for a Certificate of Lawfulness on land with various existing permissions to develop. Why are we hesitating because the cost of the application would be for 19 properties X £167.50 = £3182.50, if we were turned down at local level, I dread to imagine the cost of appeal using QC’s., etc. How can Government justify these outrageous costs especially bearing in mond the present economic climate.
    Regards
    Tony Tyler

    • Proudfoot Properties permalink

      Anthony C Tyler is quite right to be concerned. The whole cost of planning is ridiculously high and his appeal will cost him upwards of £60,000. Most of the information and reports required are unnecessary claptrap. A planning officer with half a brain could decide to support or reject most applications to his/her committee or better still by delegated powers after one brief visit at negligible cost. He could do a dozen per day. However it is not in the planning industry’s interest to make things simple, quick and cheap. Slow, expensive and as complicated as you can make it will ensure you still have a job.

  3. Marcus Galey permalink

    Unfortunately, I suspect that there is far too many who would confidently say that they fully understand PD. My experience is that the number who actually do fully understand it is considerably less. Even after many years, I may give a client a preliminary view but I always qualify it by saying that I will need to go back and look it up to check.

    However, this is rather putting the cart before the horse. It seems to me that the system needs to be clearly thought out first before we worry about the training need to deliver it.

    If we are going to encourage the use of LDC’s (for minor household stuff), then the process needs to be very simple and there needs to be an easy conversion path to an application for permission if it is refused. Otherwise (bearing in mind that it seems that many LPA’s will happily process an application for PD) the householder may have been better to apply for permission right from the start.

    The need for an LDC (for minor household development) is a symptom of the confusion of those involved, and ultimately (and ironically) dealing successfully with LDC’s must begin with the provision of clear and unequivocal information that reduces the need for formal reassurance.

  4. Here in Tunbridge Wells, we had recently a very exposed LCD decision. Local Residents Associations have often very articulate members and a particularly remarkable case can be found on a website http://www.telephonehouse.org.uk/opposite8yr/opposite8yr.html

    The case in point is actually very interesting as a former garden in the midst of a residential zone (remember MP for Tunbridge Wells, Greg Clark’s Garden grabbing bill?) – was turned into a commercial car parking space without restrictions through an LDC. The size being just 55ft by 15ft, accommodates up to 6 cars, from vans to escort cars of a local Real Estate company. The intriguing bit is that the declaration of the owner, living in Jersey, outweighed the claim of 7 immediate neighbours that the land was not used in the manner the LDC was issued.

    In my opinion LDCs will be used (if further relaxation is planned) to undermine local communities, cutting substantially their amenities for the profit of a few ruthless business people.

    At the moment we are just waiting for a next case to happen on the Tunbridge Wells’ Common.

    A major development company bought the Manor title, which included the Common. The Common had a Fairground, which was used as a car park when no events were scheduled. The car park had no foundation at all, it just crept in some 30 years ago. The Conservators of the Common . . . well, turned a blind eye and now the Developer is likely fancying the idea of turning towards an LDC to declare it ‘brownfield land’, which in consequence will end up as Development on a Common.

    LDCs are just a backdoor to grant consent where things had slipped off due to a lack of enforcement!

  5. Andy Manington permalink

    As an Agent I feel there needs to be greater clarity and clearer, simpler guidance for householders on Permitted Development Rights as the present system is not easy to understand for the layman. The whole process for applying and receiving a certificate should also be streamlined particularly the time it takes to make decisions to make a much clearer distinction between Lawful Development and Full Planning.

  6. Verina Glaessner permalink

    In my experience where Listed Buildings and conservation areas are concerned Lawful Development Certificates can be very contentious and should be used sparingly. I do not agree that speed is of the essence in planning issues at all, as community involvement is crucial and many ‘home improvements’ can have long term deleterious effects unforeseen, perhaps, at the time. I agree they can, used judiciously rather than just to legitimate avoidance of planning applications, serve a useful purpose in some limited circumstances.

  7. The real driver of Planning Permission and Permitted Development is the current CON29 Search when the Building Society and Solicitor seek proof the work on the vendors property is permitted. The lack of a Planning Permission means they will always ask the LPA why is there no permission, as there seems no proof the extension is lawful.
    The comment ‘it is probabaly PD’ is of little use to them, as lending money needs security of asset thats not subject to undue risk. So most LPA’s had a PD Letter or similar process that the owner could ask for. But thats time consuming as often a site visit is needed to check exactly whats been done and its impact, and that delays conveyancing, even with the HIP process.
    The added risk is that the verbal comment ‘its PD’ places the applicant and LPA at risk, as there is no record of what was agreed on.
    So the move from a letter to a Lawful Development Certificate recovers a cost for officer time and introduces more certainty. And as lending for mortgages is so paper intensive, it speeds up the conveyance regime as well.
    No-one really truly understand the complexities of PD and when rules changed and what they changed to(And dont get me started on Building Regulations)a formal ‘determination’ is safer. Its costly, but a few hours on planning consultant time is even more costly. Winners all around!

  8. keith oliver permalink

    I assume the question relates to Lawful Development Certificates (LDC)- “do I need permisison”, rather than Certificates of Lawfulness (CL) – I’ve been doing this for some time unlawfully can I now have permission?”

    When I joined planning 30 yers ago I naively assumed the need for these would disappear over time as all the questions would have been asked and clarified – surprisingly we now seem to use them more which just goes to show how complicated we have made the system, just look at the last GPDO review.

    The founding fathers back in 1948 seem to have used a simple guide as to what needed development – does it affect the public realm, is it safe, will it affect the neighbours? If we returned to such basics, written in plain english and the production of regular national clarification the need for LDC’s would largely disappear.

    With financial constraints looming large I believe some planning authorities are now requiring LDC’s for all p.d. queries and refuse to deal with enquiries for free.

    The introduction of ‘log-books’ for houses may also see more solicitors require written confirmation through the LDC process as part of the sale process.

    I agree with the above correspondent that if permission is required there should be a seamless move to a planning application, both in paperwork and fees.

    As to CL’s – don’t get me started. A veritable ‘cheat’s charter’ if you are willing to take the risk. Often the planning authority will not have the records to challenge the ‘evidence’ submitted, resulting in proposals which are often contrary to policy and which would not normally get permission. Scrap them, make a normal aplication and the ‘evidence’ can then be treated as a material consideration, to be weighed against all other considerations.

  9. I presume we’re talking certificates of proposed use or development rather than existing? I deal with so many cases where people find themselves in trouble after having started a project which they thought, indeed their professional advisors thought, was PD only to be told by the LPA after thousands of pounds worth of expenditure that it has to come down. Paradoxically, it is the generous PD allowed to householders that causes the problem because so often real monstrocities are put up which ARE PD and when that is replicated on a nearby property which has a different planning history LPAs are rarely slow to point out that they could do nothing about the work across the street, but they can do something about your property and they are jolly well going to do it!

    Under the current version of the GPDO there are so many ‘maybes’ that I would always advise an LDC but I also have to be realistic about cost. Applying for an LDC is just as complex and expensive as applying for permission. Ultimately, what it gives you can be of less value. If you have failed to tell the LPA some crucial fact then the LDC can either be revoked, without any compensation, or the LPA can just say that the work isn’t as per the application. Do that with a planning permission and it is the LPAs problem if they failed to ask the right questions (I appreciate that a deliberate lie is different) and even minor difference might be waived aside as not material.

    If every garden shed, conservatory, porch, driveway and set of gates ended up on the planning officer’s desk the system would grind to a halt. Just applying for the controversial ones doesn’t work because all my clients tell me that they didn’t think it was controversial until the enforcement officer called round.

    So nice idea, but it is not going to save the planet

    • Jim permalink

      Builders very often say that a certain development (house extension, conservatory etc) doesn’t need planning – then the council find out and slap a planning order on it. So obviously peoploe need to get proper advice before starting. This is presumably the ‘permitted development’ aspect. The Lawful certificate of use presumably refers to developments that have not originally got the correct planning paperwork in place, but have been in existance the required length of time to allow regularisation.

      Either way all development at this stage of the eco earth crisis situation should be genuine eco sound with no blagging it…and that would include low technology, low impact Permaculture type projects, wether rural or urban. Do a search if you want to know what permaculture means. It is a methodology that really should be picked up by government etc, being a genuine solution not just to eco crisis, but also social factors also. (and please a ban on mindless useage of words like ‘issues’).

      I’ve got an ‘issue’ with war criminals in government. Now thats a wee bit more serious than a planning dispute, but never mind eh, play the game!

      All this has to change…the hypocritical, nay evil, blag ‘game’ aspect of society/government system. OK, thats not possible is it? Big changes, folks, big changes. Start with 100% compulsary eco sound developments, NOW, not in 10 years.

  10. Dave Smith permalink

    The LDC process works perfectly well as it is. The use of it for all PD decisions is an abuse of the system. The developer has deemed consent to build, why should they be forced or required to submit a LDC.
    We all struggle with new legislation and it is certain that the new householder part of the GPDO is not the best drafted legislation. However, it is for the professionals in the field (independent advisers or council officers) to work with and understand the legislation and give the best advice available (no doubt appeal decisions and case law will change our views over time).
    Councils may, and some do, charge for PD avice. If the advice is to be lengthy this may be justified but can it be relied on? I would suggest only in as much as the Council will stand by an informal determination.
    If the applicant requires the comfort of a lawfully binding determination an LDC is the correct course for them to pursue.

  11. question/s to local planners:

    What’s your estimation of the time it takes to process an LDC for householder development?

    * What are the common problems with the submissions you get from agents and home-owners?

  12. Gordon Bradford permalink

    Surely the purpose of amending the GPDO was in order to release more minor development from the planning process? Indeed, the purpose of the GDPO in the first instance is to grant deemed consent for minor development that would otherwise require an application and thus reduce the burden on the planning system.

    Now we seem to be saying that you had better make an application if you want to be confident that it does not need an application. That can’t possibly be the intention!

    Don’t get me wrong because I realise why people are advised to make a CLEUD application is given. The regulations are clearly overly complex and remain ambiguous despite recent changes. However, it is this aspect that needs to be looked at because accepting that we must make an application to prove we didn’t need too is not the way to a speedier and fairer planning system.

  13. Charnwood Borough Council has developed a self assessment form for householder PD. We therefore do not give verbal or informal advice except through this form and the guidance we provide on our web site. If formal written confirmation that a scheme is PD we will only do this through the CLD process. If applications are submitted we will process them and determine them as PD.
    We found in the past that agents were using our free informal advice system to advise possible applicants on the need for PP and then charging them for the advice we had given free.
    The forms are available on our web site http://www.charnwood.gov.uk along the with masses of guidance that is currently available. The self assessment forms are a set of questions and if one answers any question with yes then PP is required.

  14. Alan Chandler permalink

    If there is not a simpler process for dealing with LDCs then there will be no gain in streamlining the planning process through the latest revisions to the GPDO. If the submission requirements are the same as those for a planning application then it may as well be a planning application – it will take as much time to deal with. I fear that registration officers will look to planning application requirements in terms of submission criteria for LDCs too as there do not appear to be clearly formulated alternative criteria. If pd is about size, and matching materials then plans with maximum heights annotated are all that should be required, along with a note of what materials are to be used. Surely that is the point of pd?

  15. Rob Nimmo permalink

    When I first started work in a planning department some 40 years or so ago, I remember being told that whatever question a member of the public might ask, the answer is that they need planning permission. I didn’t agree with that then so left after a couple of years…and I still don’t agree now.

    From a few of the responses it would appear that some planners may have either forgotten, or have never been aware of the view that as public servants they are paid to give advice to the public and to make sure that the advice they give is accurate.

    So no, an nexpansion of the use of LDC’s is not neeeded, just better and more knowledgeable advice from LPA officers.

  16. Matthew Tindall permalink

    From my recent experience the main benefit of Lawful Development Certificates is that Planning Officials can now refer any and all queries to them. Instead of answering simple questions or engaging in discussions, officers within Local Planning Authority’s just advise to send in a LDC.

    I can see the possible purpose of LDC’s for grey areas within the GPDO however this bureaucracy should not be used when a simple discussion can solve the problem. It seems that someone has made the decision to stop allowing free advise via letters to and from the LPA’s and instead an LDC fee is charged. The only problem with this is that it rules out the simple queries being answered via phone and e-mail.

    If this is not addressed it will not be long before questions about an LDC get referred to another form at another cost!

  17. Michael Hildyard permalink

    I’m afraid the time has gone when a planning officer would normally give free advice to an inquiry. The ordinary menber of the public has lost faith in the profession because of the bureaucracy and the inabilty of the profession to act quickly for the benefit of the public. The more and more detailed requests for information created by policy makers with no on the ground experience is mind blowing, costly and slowing down the process. We should be arguing for less control not more. The new GDO is a joke.

  18. Ken Snape permalink

    Dear Mr Kendall
    Your words:
    “With my CLG hat firmly on we are trying hard to deliver an understandable planning process and reduce the burden on citizens who wish to make improvements to their homes.”
    I have to suggest to you (your department/section) that you have failed miserably!
    I have work colleagues who dread being called to reception desk to met members of the public
    A simple question as to whether or not a project is PD or requires a full planning application or the dreaded question is it deemed as a Lawful Development send a cascade of uncertainty flowing through them – and who can blame them?
    This simple question is asked most often when a project is on the cusp and planning officers – who are VERY knowledgeable – are being forced into demanding / asking for full drawings, elevations and in some cases sections through. In other words an application!
    Why?
    I come back to the simple, repeated statement, they dread making the decision simply because they themselves – quite rightly – need an audit trail to protect themselves. They are simply not empowered to make the decision with out what amounts to a full blown application!
    So just think about this for a moment – as in please! Central government wants the system simplified. Agents want to save their clients time and money
    NO we do not want to “cut corners”
    BUT to obtain a Certificate of Lawful Development – or what ever sequence of words one wishes to use in the title – one has to, in effect make a full planning application???
    Where the heck is the sense in this? How has this speeded up the system?
    How is this “customer friendly” for God sake?
    Why can’t the use of a quick site visit, together with a “straight line sketch/drawing” of the proposals relating to the specific area and site photographs be introduced? This together with the client and agent entering into making a “legally binding statement” which all parties sign / countersign?

    One realises that some projects are very complex BUT for homeowners / domestic developments to existing structures there has GOT to be a simpler way forward then the current situation

    And as an aside just what the heck is the point in writing into the local Council asking if a project does require permission and getting a letter back with the caveat words to the effect:” this letter has no legal standing it’s only an opinion”. what use is that?
    You really do need somebody like me to help your team understand the “real time” problems we encounter and yes that’s an open offer of help!!

    Ken Snape

    • Terry permalink

      Well said Ken!
      I have just applied for a CLD with full elevation drawings only to find that it was turned down because what I thought was the principle elevation ( the main one facing the road) apparently was not in the planners eyes. Fair enough, but a simple site visit could have told me this and saved me thousands of pounds in fees and drawings and not to mention months of time. Not only that, that view now opens more questions, like if that elevation is not the principle elevation, can I build out buildings between that elevation and the road? I supose if I really want the answer its going to cost me time and money!
      What a complete waste of time!!

      Yours, A member of the stitched up public, again!

  19. PortalDirector permalink

    Ken,
    thanks for the feedback and the offer of help. I have to take issue with your statement that we’ve “failed miserably” though.
    As you are aware planning is a complex business and our policy makers are often times bombarded with opposing and contradictory views of how the system should work.
    It is a thankless job balancing the competing demands of often vociferous stakeholders whilst at the same time attempting to reduce the administrative burden.
    From the Portals perspective we do not make policy, but we do try and help deliver it where electronic services can help by explaining policy in plain English or by providing tools to ease the process.
    When we started out there were only 2 or 3 LPA’s accepting electronic planning applications, now nearly 40% of all applications pass through the Portal, using a set of forms (admittedly not yet perfect)that are at least the same wherever you apply. Surely this is progress?
    We know there is still much to be done, but I don’t believe it is fair to say that we’ve failed or not to recognise that the Portal team and our policy colleagues are doing there very best to make it a better system.
    Chris

    • Ken Snape permalink

      Dear Mr Kendall (Chris)

      Then you have missed the point!
      Whether YOU wish to take issue or not is NOT the issue
      The comments are directed at your Team nothing, one hopes, is intended as a personnel comment.
      However, when the statement of intent and the strategy / synergy which supports that public “broadcast” is, to all effects, “we are making progress” I have to take the stance and , in my opinion, tell you that the statement is incorrect. I have to tell you again “your” – the collective “your” if there is such an expression, progress / strategy is not working!
      This could become rather pithy but the question has to be asked when you did – or ANY of your Team, as a customer, approach your local authority to submit an application?
      The frustration, and indeed embarrassment, that Planners so obviously feel we are asked to produce , as I’ve stated earlier, a full plan application for a project which is etc etc!
      Now, if one can put aside any personal hurt or indignation. What is the initial response of your Teams thinking on the suggestion of a semi-legal “contract” between the client, agent and LA – in specific relationship to “minor” domestic developments?
      Chris – there has GOT to be thinking outside the box! Nobody is trying to “put one over” on planning colleagues but the system is not working – take the time – please – to review all the other comments. We are all saying the same thing…on paper it looks good however, in the real world it’s simply not working!
      Are we trying to make what should be a professional meeting between two professional adults, both with a job to do, too complicated, too bureaucratic?
      Kind regards (genuinely!!)

      Ken Snape

      • Marcus Galey permalink

        Apologies but I felt sufficiently strongly that I had to take the risk of butting into what may be a private discussion.

        Taking onboard Ken’s point about how planners feel about being asked if a proposal is PD and his suggestion about an ad-hoc contract, there is a simpler solution (one that Ken alludes to) that we have lost – get rid of the ‘this is an officer opinion and doesn’t bind the Council’ sentence in connection with issues of PD.

        This disclaimer has a perfectly proper place in connection with proposed planning applications where an officer cannot be certain that the matter will not be pulled up to Committee (and who will make an unexpected decision). It has no place elsewhere. If a Council employs appropriately qualified, trained and supervised staff, then it should be (and probably is in law) bound by the advice they give. I can imagine the reaction from my clients if I were to finish my letters with ‘this is an officer’s opinion and does not bind the Company’!

        BTW I disagree with Ken’s point about the Portal. As someone who personally submits a couple of dozen applications and appeals each year (and supervises at last as many more), it has made that process much easier for professionals. The success of the work to inform the public is less clear cut but that is probably a result of the complexity of the law and policy. Yes, Chris Kendall isn’t a planner and (I would imagine) neither are many of his team – however, the majority of people involved in planning are not planners. Most are confused members of the public with a smattering of architects, surveyors, waste and minerals specialists, lawyers, highways engineers etc. etc. Having a web person running a web portal seems like a reasonable thing and a lack of planning experience may helpful in making sure that the lay person understands the information. However, I would support Ken’s point about spending as least as much time out in the ‘real world’ talking to users, as in the DCLG talking to policy makers.

    • Andrew Rogers permalink

      Having wrestled since 1 October last with the new rules (and with two appeals currently awaiting decisions) I was very disappointed that Steve Quartermain rejects the possibility of a Circular to explain/clarify the more obscure and contentious parts of the Order. I would suggest that at the very least it would be extremely useful to have a set of definitions, including:
      Curtilage
      Rear wall
      Eaves
      Highway
      Linked dwellings
      Basement
      Ancillary to enjoyment (ie a wider explanation of what is allowed, particularly in respect of living accommodation)

  20. Dave Smith permalink

    Marcus, thank you for taking the personal agendas out of this important issue.
    As a planning enforcement officer I feel have to oppose the suggestion that we take the caveat out. The caveat is only part of the advice given and it can only be advice and not binding on the Council. Advice may be paid for and given by the developers consultant(s), this advice may or may not be accepted. If it is accepted and is found to be wanting the developer may suffer the consequence and will no doubt seek redress. However, when a developer seeks advice from the LPA an individual can not be held responsible.
    There is a method for obtaining a higher level of comfort, if required, this is via a planning application or LDC. Unfortunately this route does require additional input and detailed submissions, this is unavoidabe as a development can not be fully assessed as ‘in accordance’ until it is complete, be it PD or PP.
    I fail to see any major problem with the system as it stands (nothing is perfect), it appears to me that we are looking for problems where they do not normally exist. The vast majority of development that is built as PD is completed without issue. Some may be brought to the attention of the LPA, in my experiance the majority of these are PD. Of the few that are not PD the majority would not be enforced against as they would benefit from permission if an application was made, therefore an application is invited. This leaves a minority which are not PD and are unnaceptable, in my experiance these are frequently built by those who have not taken advice from anyone and by some who know better and are trying their luck.

    • SELF ASSESSMENT FORMS

      Charnwood Borough Council is operating a “New” approach for people wanting to know if planning permission is required. We have received positive feedback from people using our set of self assessment forms for householder PD which have been in operation since last October. We have not encountered any problems except requests for assistance in interpretation and we have now provided all information available to ourselves via links on our website.
      The completed form can be returned and we will record it in our database and display it on our website, alternatively, if written advice is required an application for a Certificate of Lawful Proposed Development to be submitted.
      This innovative procedure has reduced costs to agents, applicants and the council and prevents delays, people know if permission is required as soon as “Yes” is answered.
      Planning technicians also use the forms when registering applications to check if an application is PD.
      This approach has been adopted by at least 1 other council and our Building Control Service.
      Please visit our website http://www.charnwood.gov.uk/pages/extending_your_home or contact us if you wish to discuss our approach.

  21. John Harrison permalink

    I have around 35 yrs DC experience and am particularly interested in the legal and procedural side of planning. I currently work part-time as a Plannng Officer for LB Waltham Forest and edit the DC Forum column in “Planning”. I would like to think I am well placed to comment on this issue and would emphasise my views are personal. I wrote an article on LDCs in the TCPA magazine last yr and I would recommend you have a look at that – if you need a copy, please e-mail me.

    I presume your interest is primarily in Clopuds. i have few comments on Cleuds. These are a v useful procedure for determining whether activities are immune from enforcement. I would, however, suggest that the 4-yr immunity period for self-contained dwellings is too short as often they are difficult to detect, e.g. in flat conversions.

    Moving on to Clopuds, I am somewhat concerned you should be advocating their greater use. When I researched my article I found that approx 10% of LBWF’s appns were Clopuds. Bearing in mind they take less time to determine than conventional plg appns, one can surmise that around %5 of DC staff time is spent on them. In staff time that is broadly equiv of having one staff member spending half their wk on this work which is quite a lot of money in terms of salary, but also there is a shortage of plg officers so this might not be a good use of a valuable resource. On top of this, of course, is the cost to the applicant of time spent filling in forms or paying an agent to do so, etc. It is a lot of beaurocracy. If the time doing all this could be better spent, e.g. to make widgets, it would help the economy.

    I would not advocate the abolition of Clopuds. It is often v important for someone to have a definitive statement whether something requires plg permission and where legisln is unclear is v helpful. Part of the problem is agents apply for them without thinking, banks insist on them before advancing mortgages for extns, etc, but it might be difficult to change such attitudes. Nevertheless, if such people could be discouraged from always applying for Clopuds that would seem a good idea.

    Another problem is the complexitiy of the provisions on what does and does not require plg permission, especially for domestic extns, but also more generally. Though I reckon I have a v good knowledge of plg law I often struggle to understand some of the provisions. Last yr’s GPDO Amendment was an absolute farce. The basic theory of it is quite good, but the detailed provisions require complete revision. No wonder LPAs put caveats when they give an informal view on a query whether something requires plg permission or flatly refuse to answer such questions except by a Clopud.

    One minor but useful change to legisln would be a provision that if someone applies for plg permission and the LPA determines it does not require permission, the Council should be empowered to determine it by indicating permission is not reqd, i.e. effectively granting a Clopud. At the moment they have to grant the appn in such circumstances (or refuse it though this clearly would be unreasonable). Also, Clopuds should be valid for a period of say a yr notwistanding any changes in legisln. It was nonsensical than on 1 October 2008 Clopuds previously granted effectively became invalid.

  22. Ed Murphy permalink

    An interesting debate.

    It’s entirely right that a response to a PD enquiry is accompanied by a caveat: legislation set up the CL, and formerly the S.53, mechanism to provide the binding level of comfort that enquirers should really be seeking to avoid the potential consequences arising from inadequately-framed enquiries or responses. Recently an agent enquired in writing if an extension was PD; he received a letter from us saying it was but with the caveat; he replied saying he wanted a ‘formal decision’ but wanted to bypass having to submit an application for a LDC….

    On another point raised earlier in this thread, my understanding from case law is that an application for planning permission does not carry with it an implicit application for a LDC and the submission of a valid planning application requires that the LPA to determine it (i.e. grant/refuse) not to assess whether PP is required, although some LPAs do this.

    We all seem to agree that the 2008 changes to the householder PD rules are a disaster and dismally fail to simplify the process or to reduce time spent on (alleged) trivia. I doubt the legislation can have been drafted by anyone with any relevant experience of responding to PD queries.

  23. Graham Monks permalink

    I do not live in the area however I have just completed the self assessment form from Charnwood DC and found question 1.12 on outbuildings misleading. To the question is the proposal ‘situated more than 20 meters from the house and covers more than 10 square meters of floor space’ I would have to answer ‘yes’ based on my recent successful LDC, however, the GPDO 2008 Class E2 states that this is only applicable if its within a) world heritage site, b) National Park c)an area of outstanding beauty or d) the broads.

    Is the whole of Charnwood one of the above 4 ?

  24. John Harrison permalink

    Something I forgot to say in my submission a few days ago is it would be useful if LPAs coudl condition Clopuds. This is not as daft as it sounds. I had a case today for a roof alteration which was basically PD, a hip-to-gable & rear dormer. The side window, however, did not have an annotation that the lower pane would be fixed shut, only that it would be obs glazed. I had to ask the applicant to confirm they would do this. Fortunately, I’d got the confirming e-mail by the time i got back to the office from my site visit, but applicants/agents are not always that quick. Similarly the matching materials issue is something that could usefully be the subject of plg condns as again these are not always annotated on plans.

  25. I’ve been an Enforcement Officer for some years, initially with a N. London authority where it was usual in the run up to the end of the last millennium to receive about 250 applications for LDCs every year. I and my enfoecemnt colleague were responsible for the application, its reasearch and its documentation to Legal services for the issue or refusal. Why enforcement officers?? Because planning officers get too bogged down with the ethos of planning – as is ably demonstrated by the majority of the existing comment here which has got well away from the headline topic. LDCs are matters of fact and therefore are no great deal. For proposed development they are probably the most cost-effective use of a planning fee that there is and for these there is no excuse for taking any length of time to issue a Certificate.The fastest I have ever dealt with an application is 6 hours from time of receipt – lawful existing development proved by builders records, neighbour support correspondence building regs records and aerial photos. (There was a good reason for the speed which is irrelevant here).

    It would help if the new GPDO amendments had been drafted with some intelligence and logic but LDCs are useful, are easy but I agree with one correspondent they’re not mandatory – but for goodness sake, (and I have heard this said by RTPI members involved in training)keep them away from planning officers!!

    • JOHN CLAYTON permalink

      I agree with Brian Morgan, is there any legislation that can enforce a LDC be issued before 7 weeks and 6 days

  26. Graham Cox permalink

    The whole setting needs to be changed.

    Local authorities should be able to enforce planning breaches years after they occur rather than the paltry one year that applies now.

    It is a cheaters charter currently and many don’t bother with the ‘pieces of paper’ even when selling as buyers can get indemnities paid for by the seller for £50!!

  27. Martin Goodall LARTPI permalink

    You only need an LDC if there is a genuine doubt as to the lawfulness of a particular development (existing or proposed). Lawfulness does not depend on the issue of a certificate. The LDC is simply confirmation of the position, and is usually only needed when there is an actual or potential threat of enforcement action against an alleged breach of planning control or where there is some urgent commercial reason for wishing to guarantee that a particular development is lawful. In other cases you can just get on with it without bothering the planning authority about it.

    An experienced planning consultant or planning lawyer should be able to advise as to the lawfulness of a particular development (e.g. as to whether or not it is permitted development or whether a planning permission remains extant).

    Planning officers all too often advise people to apply for an LDC when this is entirely unnecessary. They also quite often call for a planning application when none is required. What people need is sound professional advice from indpependent consultants or solicitors who will take a robust approach to any nonsense from the planning authority.

    In those cases where an LDC really is required, it is not just a question of filling in the form and paying the fee. You need to know what evidence is and is not required and how the rules work in practice. The advice notes issued by planning authorities often get this wrong, and call for ‘corroborative’ evidence which may be entirely unnecessary. Again, an experienced planning consultant or planning lawyer can ensure that the applicant gets this right and is not misled by misinformation from the planning authority.

    In an ideal world, people like me would not be needed, but as we all know, the planning system is very far from being perfect, and I often wonder how the layman can make any sense of it without professional help.

    • Barbara grey permalink

      I have been assured that a barn we are building falls within Class A Part 6 of Schedule 2 of the T & C Planning Order 1995 and so does not require planning permission. I have a document confirming this. However, I have a friend who is a planning consultant, and he assures me that I should apply for a LDC. What should I do?

  28. Rosena permalink

    Help please…my neighbour has gained a cert of lawful consent for an extension of just under 50 sq metres, however he is building one which is almost double the size and out of proportion with our houses (a pair of bungalows) he has previously been turned down for planning permission on a large extension. I am worried that he will carried on regardless and ultimately the Council won’t act. We are in what is known as backfill so I feel there is a lot less protection for us as we are not visible from the road so basically my neighbour has carte blanche. To date he has built a number of large garden buildings, paved over half the front garden for parking and built an enormous gazebo, We feel powerless. Views please!

    • PortalDirector permalink

      Hi Rosena,
      have you spoken to your local authority enforcement officer?
      Chris

  29. Seeking case law for extending residential garden curtilage, would require any relevent information ar advice of a website we have lived and owned the property for 16 years. Many Thanks

  30. Les permalink

    it is all down to cost and skill and knowledge.

    If you (the LPA) miss one ingredient out we are scupperred.

    The PINS householder appeal process is also affected. Chemists, solicitors, physicists etc. as Inspectors.

    Without years of experience in planning how can anyone understand the PD’s, LDC’s, new PPS’s badly written or otherwise. LDF’s saved policies.

    Sorry wrong portal to discuss this topic. Will PINS have a discussion forum?

  31. Barbara Helm permalink

    I have read with interest all the previous discussions. As a pensioner with very little savings, I cannot afford surveyors, planning consultants etc to help me.

    I am attached to my next door neighbour by my garage and a back room. In 2008 they had a conservatory built by a friend. I discovered that they had cut away my soffit board, cement and a tile, pushed a lower tile down and the upper tile now not laying flat.

    I went to my local Planning Office and asked to look at the plans. I was told that it did not need Planning Permission and that no plans had been submitted, just some measurements. I was sent on to Building Regs who said that as it did not need Planning Permission, it was exempt from Building Regs.

    I consulted my House Insurance and was told to write and tell them to reinstate my tiles. To repair it, the builder just cut a piece out of the guttering put a lot of silicone in and placed a new tile over the top. The whole worry caused health issues and although I knew it was not right I did not have the energy to try and get it sorted properly.

    Although the repair was okay when it was first done, for the last eight, when it rains water runs down my walls and the fascias drip. The neighbours refused to do anything about the problem. I was advised by a friend in another Council that the Planning Officer had a duty of care and should have checked that the building was exempt from Planning Permission. I therefore asked for this.
    The answer came back that my allegation that the roof height was above that permitted was untrue. I wrote back again and asked for the measurements. This time I was told that drawings and manufactures specification were given but that they were confidential. I was told that the building was as per submitted. I was further told that the building was exempt from Planning Permission and given two of the three conditions for a building under the size required for Planning Permission. I was advised that the Council cannot control buildings within the Permitted Development.

    I checked the Portal and found that the depth cannot be greater than 3 metres. This building is about nine inches over that. I wrote back and asked for the depth. They did not answer the question. .

    I wrote a formal letter of complaint pointing out that the measurement was larger than that submitted and also asking if I could see the information provided through the Freedom of Information Act. My letter was ignored, as was a hand delivered copy.

    I cannot trust to get the whole truth from the Enforcement Officer and cannot even see what information was provided in the first place.

    I still have water running down my walls, cannot mend it because it is all stuck to the next door property.

    I got a letter written by a solicitor to ask them to remove and resite the guttering. They put the house on the market and did not declare a dispute. Supposedly the neighbours want to sort out the situation but nothing is happening. My builder cannot repair my roof until they remove the guttering.

    Due to all the above I think that Planning Permission or a very similar equivalent should be in force if only to protect the innocent. Most of us do not have the money to fight a case like this. If proper plans had been submitted in the first place, this situation would not have happened.

    • PortalDirector permalink

      Barbara,
      have you considered contacting Planning Aid.
      They provide a very helpful service (at no charge) and will I imagine be happy to help.
      Best regards,
      Chris

      • Barbara Helm permalink

        Thank you. I will try this avenue and let you know how I get on.

        Regards

        Barbara

  32. Les permalink

    Under the Party Wall Act if a builder – owner does not serve notice before undertaking works they are liable to make amendments repair damage caused etc. Whether ti requires planning permission or not the above Act is quite specific.

    You can down load the act or obtain a summary copy from Building Control.

    If you have building insurance cover this should permit you to employ a party wall act surveyor to resolve the issue and recharge the cosats to the neighbour.

    Otherwise Citizens advice bureau may help.

    • Barbara Helm permalink

      Thank you all for your help. I have not heard back from the Ombudsman as yet. This was part of the suggestion from Planning Aid. I contacted my Buildings Insurance – they told me that could send out a surveyor to check the damage but if they did not pursue it then I would lose my no claims, so I have not gone that route at the moment. I have since received a letter from their solicitor saying that they would remove and re-site the guttering but now they have moved out.
      To go back to your original points, I think it is very important that when people want to build something they should have to submit plans that are available for neighbours to see. At least we would know if they have built to/deviated from what was submitted.
      It should not be confidentail when it affects other peoples property.

  33. I

    f you’re looking to undertake structural changes that will increase the size of your property, don’t forget to inform your buildings insurer first. Homeowners who do not contact their insurer could risk being left underinsured or invalidating their insurance in the event of an incident occuring during or after the works.

  34. Barbara Helm permalink

    I got a reply from the Ombudsman who decided that the council had not done anything wrong. I was however provided with a copy of what my neighbours submitted. (which the council would not let me see) Although the form requests for a plan showing the site boundaries and distance from the the boundaries, this information was not given. I am sure if this had have been asked for, questions would have been raised at this stage, and the building would not has intruded on my property,.

    the Portal states:

    “•Single-storey rear extension must not extend beyond the rear wall of the ‘original house’* by more than three metres if an attached house or by four metres if a detached house.”

    My house is attached to next door by a garage. Estate agents refer to these as linked detatched.

    I would appreciate some legal clarity on whether I am an attached or detached property, as the conservatory is more than 3 metres in depth

    Thank you for your help

  35. Katie Parsons permalink

    Barbara – appeal decisions suggests that your property could be considered as not detached, but could be detached – it depends on the circumstances. Have a look at Steve Speed’s useful appeal decision summaries at http://www.planningjungle.com/

  36. Barbara Helm permalink

    Thank you for your comment.

    I did quickly look at the site, but will need to spend some time looking thoroughly in to it. At the moment I am going through the Small Claims Court to try and get all the money I have spent out.

  37. Barbara Helm permalink

    It all looked a bit complicated Katie! I keep hearing that “Linked-Detached” is an Estate Agents term. The words are opposites of each other : Linked meaning joined and Detached meaning not attached.

    It is like describing someone as a thin-obese person which is equally nonsense.

    The portal only refers to attached or detached and I am certainly attached to next door. However, If the enforcement officer is saying that I am classed as detached then I don’t stand a chance against authority.

    I understand that National Requirements state that a Site Plan showing where the boundaries are has to be submitted. The form that the neighbours completed also stated that they had to provide the necessary information i.e. a site plan showing the boundaries. All they provided was a drawing of a conservatory -not even attached to anything at all, and no boundaries at all! They were then advised that they did not need planning permission and when I queried it,I was told that it was built as submitted. Hopefully I will get some of the money I have spent out, and the Judge has ordered that the guttering has to be re-sited as per the Surveyors report.
    The Planning Department wash their hands of the matter and consider it a Civil matter.

    • Richard Devonshire permalink

      I would say your property’s are attached – the original dwellinghouse is defined as the whole property as it was first built or as it stood on the 1st July 1948 – If these property’s are attached as such then they are certainly not “detached”.

      For example unless there is some other impediment (such as the removal of PD rights) then as the rear of the garages from part of the rear of the original dwellinghouse you can extend beyond them (with a conservatory for example) by 3 metres without planning permission.

      Neither would planning permission be required (unless constrained by a planning condition or other lawful impediment, such as a restrictive covenant) to use the “attached garage” for any purpose incidental or ancillary to the enjoyment of the dwellinghouse.

      • Barbara Helm permalink

        Hello Mr Devonshire,
        Thank you for your helpful comment. (I have been away hence the late response.) The conservatory next door is 3 ½ metres in depth. The enforcement officer is saying that the allowance is 4 metres. Surely he should know the information that you have just supplied to me?
        I asked the council to view what my neighbours submitted and was told it was confidential. My formal letter of complaint with 13 questions went unanswered, despite also hand delivering it two weeks later. One of my questions was to ask if the information submitted by my neighbours could be made available under the Freedom of Information Act. I therefore took the problem to the Ombudsman. From him I received the form that the neighbours had submitted to the Council. The Enforcement Officer told the Ombudsman that he was advised that the file was confidential.
        The Ombudsman enclosed a copy of this application with his decision that that he had discontinued the investigation and closed my complaint.

        The form the neighbours filled in had a Section stating to submit the NECESSARY DETAILS: one of which was showing the distance from the boundaries. (i.e. my house) These details were never submitted. They only give a sketch of a free standing conservatory. It didn’t even show where it was attached to their house, let alone the proximity to my house. It could have been built anywhere. When I wrote into the Council I was advised that any boundary issues brought about by the construction of the conservatory cannot be controlled through planning enforcement and I was advised to seek legal advice. If the council had obtained the NECESSARY DETAILS: of the floor plan, it would have been obvious that they were encroaching on my property at a point in time before it was built.

        Who on earth “polices” the Planning Departments? .

      • Richard permalink

        It’s either detached (stand alone) or attached (to something else) “link detached”(!?) is (in my opinion, a fancy term used as a selling point by property developers – sounds better than buying a “semi”, anyway “link-detached” has no relevence or definition in the General Permitted Delopment Order – I also previously mentioned that both properties would normally have the option to convert these integral garages to habitable living space which would be ancillary or incidental to the enjoyment of the dwellinghouse and without further application to the local planning authority, and doing so would further demonstrate that these dwellings are attached for planning purposes.

        The 4m depth allowance relates to detached properties, 3m for semi-detached (or semi-attached for that matter).

        It is unfortunate your LPA has taken the view that your neighbours property is considered “detached” for planning purposes, I would ask them to explain which part of the General Permitted Development Order they are referring to what precedent they consider applies (for example a previous planning inspectorate appeal decision or case law precedent).

        Having said all that, and in spite of your obvious objection, it is not to say that even if planning permission was applied for it would have been refused, the LPA may well have approved the application unless it causes a demonstrable harm to the residential amenities of your property (and that may be somewhat subjective).

        Your Council will have a complaints procedure (separate of the planning complaints procedure) or you could write to the Councils Head of Planning services or the Principal Solicitor or the Chief Executive and your local elected member.

        You could always engage an independent planning professional to represent you, and it may be worth investigating whether your property insurance covers such disputes.

        This link may help (pardon the pun!)

        http://www.pas.gov.uk/pas/forum/thread-maint.do?topicId=1839697

  38. Andrew Rogers AADip ACArch DipTP MRTPI DipEnv&Dev permalink

    This is a linked-detached property (the garages are joined together).

    Regards

    Andy Rogers.

    /Users/andyrogers/Desktop/Picture 1.png

    • Barbara Helm permalink

      Hello Mr Andrews

      the Portal states:

      “•Single-storey rear extension must not extend beyond the rear wall of the ‘original house’* by more than three metres if an attached house or by four metres if a detached house.”

      There is no mention of linked detached.

      As per my above comment The words are opposites of each other : Linked meaning joined and Detached meaning not attached. It is like describing someone as a thin-obese person which is equally nonsense. MY house is joined to theirs. There needs to be some clarity on this issue.

  39. Barbara Helm permalink

    Thank you Richard for your really helpful comments and suggestions. I will follow them up

    Regards

    Barbara Helm

  40. tim brown permalink

    Hello, I have read these comments with interest and am glad that I am not the only one that has been left out in the cold.

    To be brief, I live in an article 4 conservation area. I have plenty of building experience from before the PD rules were changed.

    I have planned a single storey rear extension and an outbuilding that fulfil all the requirements of PD in conservation areas and have researched this thoroughly.

    As my rear garden is on a fairly steep slope I have had to excavate to gain a level and firm base on which to put the foundations. The excavation is incidental to the construction in that it has been limited to the area required for the same and the area immediately infront of the shed so I can access it.

    I have planned in measures such as reinstating the grass over the roof of the outbuilding so the slope retains its former appearance.

    As soon as the excavation was completed planning enforcement came along and stated that in their opinion (presumably as I have excavated for 2 buildings due to access limitations) it is an engineering project and that it requires planning.

    They have confirmed the buildings are PD but persist in the view that the excavations are not,

    I have been friendly and approachable and have asked what they are basing this on (regs, case law etc) and the only answer I can get is that it is there opinion. I have asked what they would like me to change to make it PD and they tell me they can’t make a decision until the planning application is processed.
    I have asked what they would require me to do if an enforcement notice was served and ditto.

    I have rechecked the internet and several planning advice companies have supported my view that it is PD .
    So what is the point? I have now put in an application for a certificate of lawful development but now have to wait 8 weeks while it sits on some-ones desk (why?? a planning app has 6 weeks for public comment but all this requires is for someone to look at the facts!), all the while the topsoil above the chalk on the top level of the garden is being washed down onto the levelled area as the retaining wall has not been installed (in case they tell me to fill it back in wasting the best part of 10K) so I will have to wait and rehire a digger to move it back, if they let me do it.

    Yes this is much less stressful than being able to plan things in advance!

    • Richard Devonshire permalink

      Go to http://www.DCP-Online.co.uk and sign up for a free trial – register etc etc and search “excavations”.
      I believe significant excavations are an engineering operation in themselves and the inevitable construction of retaining walls do not benefit from PD under Part 2 GPDO.

      The excavation and construction of retaining walls would be considered a separate building operation to the construction of the single storey rear extension.

      • tim brown permalink

        Hi Richard, thanks for the DCP-online tip, that is a great site!
        when I searched for excavations and looked under excavations and banking i found this:-

        12.8112
        Classes E and F do not include reference to engineering operations, and thus works such as significant excavations and soil/earth deposition are not Class E permitted development unless they form an integral part of a building operation or the formation of a means of enclosure.

        also

        4.3134

        The excavation of land for the purpose of creating the right conditions for development is, viewed on its own, an engineering operation but in practice distinction between excavation and the building operations which inevitably follow is normally quite unnecessary.

        As the excavations do form an integral part of the building operation ( i cant build an extension or lay a shed slab on a 1:3 slope) and the retaining wall also forms a means of enclosing the bank I would say they are included in the permitted developments for the shed and the extension. No?

  41. Richard Devonshire permalink

    Well I would say “No” Tim, sorry. I do not think the excavations and construction of retaining walls form an integral part of the construction of a single storey extension – however I do agree that they appear to be necessary works in your case – but they are quite separate operations.

    The works you propose are peculiar to your site – you can’t construct the single storey extension without first carrying out “other operations” to prepare the site to make way to construct something else (subsequent to those excavations and retaining works) – it is a matter of fact and degree and a de-minimus (almost insignificant) degree of minor groundworks would be considered incidental.

    It is “in this case” that the distinction is necessary because incidental excavations ordinarily required, for example the laying of foundations and pipe trenching, ARE an integral part of the proposed construction, as where the degree of other works you propose would not be considered integral (in my opinion).

    That’s not to say that planning permission should not be approved – but I doubt that your LPA will be able to grant the certificate of lawfulness for the other works because I suspect you’ve included both operations ‘the excavations/retaining walls & construction of extension’ in the same application.

    However if you disagree you could take any refusal to approve the certificate to the Planning Inspectorate.

    Alternatively you could just apply for planning permission for the works prior to the construction of the PD extension.

    Should you decide not to apply for planning permission the LPA will need to consider the expediency of taking enforcement action “to remedy a harm” not to solicit a planning application via a grounds (a) s174 appeal – but thats a whole new discussion.

  42. Richard Devonshire permalink

    And…Google search “Appeal decision for excavations and construction of retaining walls”. There’s quite a few cases which discuss similar operations to your development. Not looking good especially if it is considered your excavations adversely affect the setting and surrounds of the conservation area.

  43. tim brown permalink

    Hi Richard,

    Whilst I value your opinion and interest in this project, I would have to question your statement that this only covers minimal excavations for drainage etc as the above quoted 12.8112 actually states `significant excavations` and the case law referred to in the chapter quotes the excavation for a full size tennis court.

    I have carried out hundreds of google searches and even when submitting the exact text you supplied, I can find no appeals or submissions that relate to excavations or retaining walls incidental to an extension or outbuilding but plenty of excavations for new buildings that were denied for reasons pertaining to other aspects of the development.

    One missing reference I have so far been unable to find if anyone can help, is a reference in class A to excavations being included in PD if incidental to the construction of the extension. I have found clarification in my previous post, that although it is not mentioned in class E&F it is accepted if it forms part of an out-building, etc. so presumably class A refers to this directly?

    Many Thanks

    • Richard permalink

      Then we’ll amicably agree to differ, so good luck with it Tim.

      Perhaps you’ll post your LPA and application reference number or Appeal reference number so that we may all follow this development with interest. I don’t think you mentioned whether or not the retaining walls exceed 2m in height? (hopefully they don’t). But, I’d like to see the application details (elevations/measurements) before revising my earlier opinion.

  44. Gwen Hadrill permalink

    I asked my council if the PD rights on my house had been removed, they said they had not, but I want something legal that confirms this. Would a Certificate of Lawful Development tell me this as well as that what I propose is within that allowed by PD? Antone know? I don’t know whether to just go ahead & build my conservatory or not

  45. Katie Parsons permalink

    Gwen,

    You should submit a Certificate of Lawful Development application containing details of the conservatory you would like to build, and if it is PD you will receive a formal decision notice telling you this.

    • Gwen Hadrill permalink

      Thank you Katie – will they look at whether the PD rights have been removed as in the case of some converted barns? Grateful for your advise.

      • Katie Parsons permalink

        Yes – the certificate, if granted, is a definite answer as to whether that precise development can be built at that precise property. If PD has been removed they will refuse the certificate and it will state the reasons why.

  46. Gwen Hadrill permalink

    Thank you that is a real help.

  47. James Mason permalink

    A certificate of lawful development has been filed for an unauthorised development which has breached conservation area guidelines, but the existing building has been up for more than 10 years. Is a CDL valid in conservation areas?

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