Town and Country Planning General Development Order 1977–Whether the facing of dwelling-houses with stone cladding ‘permitted development’ within Class I in Schedule 1 to the Order–Submission that as a ‘cosmetic alteration’ it was not covered by permission given by Order–Secretary of State’s ruling that it was covered upheld by court–Stone cladding did not project beyond the wall, the moulded surrounds and window sills being regarded as part of the wall–Application for planning permission not required
This was an
appeal by Bradford Metropolitan District Council against a decision of the
Secretary of State for the Environment that an application for planning
permission was not required by householders who wished to face their houses
with stone tiles, this being an action covered by Class I in Schedule 1 to the
Town and Country Planning General Development Order 1977 as permitted
development.
M G V Harrison
(instructed by chief solicitor, Bradford Metropolitan District Council)
appeared on behalf of the
represented the first respondent, the Secretary of State. The second and third
respondents, Robert Paterson and Frederick French, whose houses were the
subject of the dispute, did not appear and were not represented.
Giving
judgment, GRIFFITHS J said: Mr Paterson and Mr French, who are the second and
third respondents in this application, decided that they would like to face
their houses at nos 2 and 6 Redcar Road with stone tiles. They applied for
planning permission to the Bradford Metropolitan Council, but those responsible
for planning decisions in the council refused them permission because in their
judgment it would be bad planning, as it would be aesthetically unacceptable to
have a road of semi-detached red-brick houses turned into a hotch-potch by
sporadic stone cladding. The householders, being aggrieved by that decision,
appealed. The inspector decided that the Bradford Council had jurisdiction to
entertain the planning application and that they came to the right decision.
That inspector’s report then went for review by the Secretary of State. By this
time, as I understand it, Mr Paterson and Mr French had got so fed up with all
the delays that they decided to paint their houses, and have no further
interest in this appeal. However, I am told that there is a divergence of view
between various councils and the Secretary of State as to whether or not
planning permission is required if a householder of a dwelling-house wishes to
put stone cladding on the face of his house. Some councils apparently take the
view that planning permission is not required, others, including Bradford, that
planning permission is required.
The Secretary
of State in this matter has given it as his opinion that planning permission is
not required, and the question now that I have to determine is whether or not
planning permission is required, and this depends upon the construction of
Schedule 1 to the Town and Country Planning General Development Order of 1977.
First I should read Article 3 of the order, which provides:
Subject to
the subsequent provisions of this order, development of any class specified in
Schedule 1 to this order is permitted by this order and may be undertaken upon
land to which this order applies, without the permission of the local planning
authority or of the Secretary of State.
I now turn to
Schedule 1. Schedule 1 is divided into various classes, and the two classes
with which I shall be concerned are Class I and Class II. Class I provides:
‘Development within the curtilage of a dwelling-house. (1) The enlargement
improvement or other alteration of a dwelling-house so long as,’ and there then
follow a number of provisions. Giving those words their ordinary meaning, to
add stone cladding to the face of a building is clearly at least an alteration
of the dwelling-house. Presumably, in the mind at least of the occupier it is
an improvement of the dwelling-house and perhaps it is arguable that it is an
enlargement, only that I doubt. For the purpose of the appellants’ argument,
however, it is submitted that these words should not be given their ordinary
general meaning but that in the context in which they appear in this order, and
against the general background of planning legislation, they must be given a
more restricted construction. The restricted construction for which the
appellants contend is that they are limited to the physical structure of the
building as opposed to any alteration to its cosmetic appearance. I say at once
that I find this a difficult concept because they are not mutually exclusive
concepts. You may well have a structural alteration which significantly affects
the cosmetic appearance of the building. Indeed, the whole object of a
structural alteration may be to affect the cosmetic appearance. I give just as
one example–altering the shape of a window from a rather ugly ill-proportioned
window perhaps to a more attractive round window, or something else of that
nature. So if one has to try to draw a line between structural alteration and
cosmetic alteration I can see areas of great difficulty that would immediately
arise.
In support of
the argument the appellants rely on the three provisos set out under
sub-paragraphs (a), (b) and (c): (a) limits the size of the alteration, so that
the dwelling-house is not made larger than an additional 50 cubic metres or
one-tenth of the capacity of the building, subject to a limit of 115 cubic
metres; (b) places restrictions on the height to which the building can be
enlarged, and, finally, (c) is in the following terms: ‘No part of the building
as so enlarged, altered or improved projects beyond the forwardmost part of any
wall of the original dwelling-house which fronts on a highway.’ These provisos, the appellants say, show that
the permitted development is aimed solely at what they call ‘structural
features.’ I find it very difficult to
infer that. True, they are placing a limitation upon the size to which you can
enlarge your building, but I do not see why, because there is a limitation
imposed upon the size to which the building can be enlarged, I should conclude
from that that it was intended to rule out cosmetic alteration.
The other
matter upon which the appellants rely in support of a restricted reading of the
wording of Class I is to be found in Class II. Class II is of general
application. It is headed ‘Sundry minor operations.’ It is not intended to apply only to
dwelling-houses but it is of general application to all buildings and structures,
and it specifically provides under paragraph 3 for ‘The painting of the
exterior of any building or work otherwise than for the purpose of
advertisement, announcement or direction.’
So you do not have to have planning permission to paint the exterior of
any building or work, and the argument is that that was incorporated in Class
II to enable a householder to paint his house because he would not have been
able to paint it under the general words of Class I because they were not
intended to apply to cosmetic alteration. Now I should see some force in that
argument if Class II were limited to dwelling-houses, but Class II is not
limited to dwelling-houses. Class II is of general application, and because a
provision is made that allows any building or work to be painted without
planning permission, I cannot see why I should infer from that that the very
wide words in Class I dealing with dwelling-houses would not have included
painting. I think they would. So I get no help from Class II, paragraph 3.
So the first
rung of the appellants’ objection in my view fails because I see no warrant in
either argument to cut down the ordinary general scope of the words of Class I,
which are clearly wide enough to cover such an operation as stone cladding. But
the appellants have a second string to their bow. They point to proviso (c) of
the first paragraph of Class I, and contends that the stone cladding will
project beyond the wall of the dwelling-house. The relevant measurements are as
follows: The dwelling-house is constructed of red brick. It has windows with
window-sills, and it also has a moulded surround attached to the wall around
the lower windows. These project 3 in beyond the brickwork. The stone cladding
when it is attached to the brickwork will be of a total thickness of 1 1/4 in,
so it will be within the building line, if one takes as one’s building line the
edge of the sills and the moulded surrounds to the lower windows, but it will
project 1 1/4 in beyond the original brickwork. The argument for the appellants
is that as that will be in breach of sub-paragraph (c) it is therefore not
covered by the development permission granted under Class I. The minister
rejected that contention because he gave it as his opinion that on the facts of
this case the sills and the surrounds should be regarded as part of the wall,
and that as the proposed stone cladding would not project beyond them it fell
within Class I development.
I have had my
attention drawn by Mr Harrison to the way in which this proviso was first introduced
into the legislation in 1963. The proviso in Schedule 1 to statutory instrument
1963 no 709 provided that: ‘No enlargement
front of the original dwelling-house,’ and he says that this was an intentional
alteration, so that any additions should not be entitled to project out as far
as any projections that might have been incorporated on to the wall of the
building and is to hold any alteration to the wall line and not to the line of
any projection.
Mr Kennedy
says that is reading far too much into the alteration, and the real purpose of
the alteration of the wording is to make quite clear that the limitation was
aimed at the building line that fronted on to the highway. I was impressed by
that argument, but it is weakened by the fact that that effect could have been
achieved by redrafting subparagraph (c) in the present Class I of Schedule 1
omitting the words ‘of any wall.’ I do
not think I get very much help either way from the alteration of the wording,
and the question is, in my view, whether it was permissible for the Secretary
of State, looking at this matter in a commonsense way, to regard the moulded
surrounds and the window-sills as part of the wall, and I come unhesitatingly
to the conclusion that it was. I have no doubt that the real object of 1(c) is
to hold any alterations or enlargements to the original building line, and it
seems to me that it would be a most nit-picking approach to say that although
it is attached to the brickwork and within the building line as established by
the sills and mouldings it nevertheless fails to be protected because it is
projecting beyond the wall viewed solely as the brickwork.
I was referred
to the decision of the House of Lords in Brutus v Cozens [1973]
AC 855, and to a planning appeal in which that decision was applied, LTSS
Print & Supply Services Ltd v Hackney Borough Council [1976] QB
663, and following the guidance to be found in those decisions, it is, in my
view, permissible on the facts of this case for the Secretary of State to
construe that word ‘wall’ in the way in which he did, and to regard the
mouldings and the sills as part of the wall.
Accordingly,
in my view, the Secretary of State came to the right conclusion and this appeal
fails.
The appeal
was dismissed with costs.