A recent High Court decision has underlined the importance of checking the size of the “original building” to determine if an extension is proportionate, even if that building was demolished.
In Guildford Borough Council v Secretary of State for Levelling Up, Housing and Communities and another [2023] EWHC 575 (Admin), the court quashed the decision to grant planning permission because the extent of the demolished building had not been considered in the evaluation exercise of proportionality.
The case concerned a planning application for the substantial extension of a house in the green belt of Guildford, Surrey, including conversion of a garage to habitable accommodation. The council refused the application, but the inspector granted the permission on appeal.
The council challenged the inspector’s decision on the ground that the inspector had misinterpreted policy P2 of the Guildford Local Plan, which, following the National Planning Policy Framework, defined “original building” as either the building as it existed on 1 July 1948 or, if no building existed on 1 July 1948, then the first building as it was originally built after this date.
The current house was built in 2003 pursuant to a planning permission for the demolition of an “existing bungalow” and the erection of a “detached chalet bungalow”. A Land Registry plan from 1975 showed that the demolished dwelling overlapped the current dwelling but was smaller and the garage did not exist at that time.
It was common ground that the inspector only took into consideration the size of the current dwelling to determine the extension’s proportionality. The council argued that the inspector should have used the size of the original dwelling instead. The defendant argued that, as the demolished building did not exist at the time of the application, this situation was not covered by policy P2 and would constitute a matter of planning judgment for the inspector to decide. The defendant also argued there were several practical difficulties for implementing the council’s interpretation.
HH Judge Jarman KC considered that, reading the NPPF in conjunction with policy P2, “what must be considered is not the building as it existed at the time an application for extensions or additions is made, but the building as originally built”.
The judge disagreed with the defendant’s arguments and concluded that the situation of demolished buildings was contemplated in policy P2. The judge also concluded that no practical difficulty justified departing from the wording of policy P2.
Based on the above, the judge ruled that the inspector’s decision had departed from the natural meaning of the words in policy P2. The judge quashed the decision and resubmitted it for redetermination.
Stefano D’Ambrosio is a solicitor in the planning and environmental team at Irwin Mitchell
