Town and country planning – Planning permission – Permitted development – Claimant applying for judicial review of refusal by defendant secretary of state of planning permission for a single-storey extension to his house – Whether planning inspector erring by including earlier extension as part of “enlarged part” of development – Application granted
The claimant owned a property at 41 Ashcroft Avenue, Sidcup, Kent. The property was a two-storey semi-detached house built in 1948. The claimant had built a two-storey extension at the rear of the property in 2000 and sought prior approval for a further single-story extension, relying on the deemed permission under Part 1 Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015. Class A provided as permitted development “the enlargement, improvement or other alteration of a dwellinghouse”. The claimant’s application was refused on the basis that the proposed extension was excepted under paragraphs A.1(f) and A.1(g) of Class A of the 2015 Order because it would project beyond the measurements permitted by the Order, and was therefore not permitted development. In refusing permission, an inspector appointed by the defendant secretary of state included the two-storey extension as forming part of the “enlarged part” of the house.
The claimant applied for judicial review of the decision to refuse planning permission. The main issue was as to the meaning of “the enlarged part of a dwellinghouse” in paragraphs A.1(f) and A.1(g). The claimant contended that the earlier extension should not have been included as part of the “enlarged part” of the development. The defendant argued that leaving the earlier extension out of the scope of the Order would encourage abuse of planning tolerance by “extension piggy-backing”, since property owners would carry out a series of incremental extensions which would not be permitted as a single extension but could be claimed to be permitted on a disaggregated basis.
Held: The application was granted.
(1) Paragraph A.1(b) of Class A excepted development based on the size of an extension in relation to the size of the total area of the curtilage. The “original dwelling” in that paragraph meant the house as it was when it was built. The method for determining permitted development under paragraph A.1(b) would be to measure the floor area of all the buildings as a percentage of the total area of the curtilage, excluding the ground area of the original dwelling. Paragraph A.1(c), concerning the height of an enlargement, referred to “existing dwellinghouse”, i.e. the dwelling as it existed immediately before the proposed enlargement. That would necessarily include any earlier extensions. The same reasoning applied to paragraph A.1(d). Paragraph A.1(e) involved a comparison of the relevant elevations of the original dwelling with the enlarged part of the dwelling. If the proposed enlargement extended beyond a relevant wall of the original dwelling as defined, the exception was engaged, regardless of whether any earlier extension had been built beyond that wall. The same reasoning applied to paragraphs A.1(f) to A.1(i). The proper question was whether the proposed extension would be single-storey. If so, the first comparison would be with the relevant wall of the original dwelling to see if it extended beyond the three or four metres which were permitted. There was no difficulty in that approach, even if an earlier extension had intervened. It was not clear how there could be any risk of “extension piggy-backing” as feared by the defendant. Moreover, it was not clear why a one-storey extension might become unacceptable just because an earlier two-storey development had taken place.
(2) For the purposes of Part 1 of Schedule 2 to the Order, the relevant operational development comprising an enlargement to a dwelling had to be determined as a matter of fact and degree, approached on a holistic basis. It was reasonable to assume that all the exceptions in paragraph A.1 would use similar terms with a similar meaning. An analysis of all the Class A exceptions resulted in a decision that they could be consistently applied by treating the enlarged part of the dwelling as relating to the proposed Class A development. That approach was supported by a consideration of other classes within Part 1 of the Order. The phrase “the enlarged part of the dwellinghouse” referred to development comprising the enlargement of a dwelling proposed to be carried out under Class A. Accordingly, the inspector had erred in finding that the “enlarged part” included the 2000 extension: Kensington and Chelsea Royal London Borough Council v Secretary of State for Communities and Local Government [2015] EWHC 2458 (Admin) applied.
Jonathan Wills (instructed by Kingsley Smith, of Chatham) appeared for the claimant; Jack Parker (instructed by the Government Legal Department) appeared for the defendant.
Eileen O’Grady, barrister
