Can I exercise Permitted Development rights on top of planning permission?

[JamesHopeful]

I have a simple question which I am sure will have been asked before on this forum, but I can't find the definitive answer upon searching (nor can I find anything at all on the internet more generally about it).

 

If I am granted planning permission to build a brand new house, can I then add (say) a rear dormer window or a 3m rear "extension" (both of which would be within PD rights) to the initial build specification? Or do I technically need to complete the house per the plans, wait a bit, and then undertake the additions per PD rights in a separate scheme of works?

If the latter is technically the case, there is surely no way the council could enforce against me (as it seems inconceivable that they would or could refuse -- or even demand that I apply for -- retrospective planning permission for an addition to the plan which is entirely permitted under PD rights!) -- or am I missing something?

Edited April 25, 2019 by JamesHopeful

[ProDave]

PD rights don't come into effect until completion.  Technically even a shed I built that was not on the plans should not have been built until completion.

 

Why not include your dormer on your plans?  or at least build the structure so it is easy to add it soon after completion?

[newhome]

You may run into an issue both with building control amd HMRC. Building control may want you to apply for an amendment before they will issue a completion certificate and HMRC may not allow the VAT reclaim as you have built something that isn't 'lawful'. ie doesn't align to the planning permission. Not worth the risk of either IMO. 

 

[Ian]

As @ProDave said PD rights don’t come into play until after the building is completed.

Unfortunately, the answer is to apply for a variation to your PP.

[ToughButterCup]

38 minutes ago, JamesHopeful said:

[...]

Or do I technically need to complete the house per the plans, wait a bit, and then undertake the additions per PD rights in a separate scheme of works?

[...]

 

Our PP has the following  Condition.

Quote

2. Notwithstanding the provisions of the Town and Country (General Permitted Development) Order
1995 (or any Order revoking and re-enacting that Order), no development under Parts 1 and 2 of
Schedule 2 to that Order shall be carried out without the express permission of the local planning
authority. 

 

PD rights have been removed. I understand that (locally at least) this is a common requirement. Not sure of the rationale, but there it is.

[JamesHopeful]

Thank you very much for the replies.

 

In terms of my understanding of the nature of planning permission and the conditions attached to it, I can entirely see how according to letter of the rules the building does need to be built according to the plans for which planning permission has been granted, with PD additions to be added later. However, in practice I still cannot see how this could ever be enforced: if they got a demolition order for the extension/dormer, then the moment it was demolished I could (quite legally) re-build the additions exactly as they were under PD rights anyway! And more importantly, I find it very hard to see the Planning Inspectorate upholding on appeal a council's decision to refuse retrospective planning permission to something which'd be permitted under PD. It'd be madness, would it not? 

 

26 minutes ago, ProDave said:

Why not include your dormer on your plans? 

 

A very sensible question, but I have my reasons:

• I have seen examples of where PD rights are often bizarrely much more generous than what planners will readily give planning permission for on new-builds, especially with dormer windows.
• If the ground floor "extension" were included on the plans that means either I or a future owner would have rear extension PD rights on top of it, which is a prospect which might quite reasonably worry the planners (as my "extension" followed by an actual extension at a later date would be far too big!). 

 

19 minutes ago, newhome said:

You may run into an issue both with building control amd HMRC. Building control may want you to apply for an amendment before they will issue a completion certificate and HMRC may not allow the VAT reclaim as you have built something that isn't 'lawful'. ie doesn't align to the planning permission. Not worth the risk of either IMO. 

 

An interesting thought, thank you, but for reasons distinct to my project I'm not too worried about either of these issues. 

[JamesHopeful]

5 minutes ago, AnonymousBosch said:

 

Our PP has the following  Condition.

 

PD rights have been removed. I understand that (locally at least) this is a common requirement. Not sure of the rationale, but there it is.

Rather harsh! I don't think this will be the case for me, however.

[TerryE]

@JamesHopeful, read your NoD carefully.  We have this one as well and AFAIK, this clause is pretty standard. 

 

Minor interior changes such as moving an internal doorway or adding internal non-load bearing walls are one thing, but the planning enforcement may take a very different attitude to changes which impact the exterior of the property such as the look of the principle elevation, changes to overlooking, or even the distance of the property from any neighbours.

Edited April 25, 2019 by TerryE

[ToughButterCup]

9 hours ago, JamesHopeful said:

Rather harsh! I don't think this will be the case for me, however.

I think that clause may well be common. 

[jfb]

11 hours ago, JamesHopeful said:

Rather harsh! I don't think this will be the case for me, however.

it either is or isn't the case - as others have said have a good look at your planning decision and there is a good chance all PD rights will be removed.

[Ferdinand]

12 hours ago, JamesHopeful said:

I have a simple question which I am sure will have been asked before on this forum, but I can't find the definitive answer upon searching (nor can I find anything at all on the internet more generally about it).

 

This is Planning; definitive answers do not exist. ?

 

More seriously, there is a lot of local autonomy - and the huge flexibility that is available is the flipside of it sometimes feeling like a random number generator.

 

One of the features of our system compared to others is that you get to do lots things you want if you make a convincing argument for it.

 

There are downsides too - aiui in some countries it is handled more like "we will build in this zone, and you can do it without individual permission" (which may be why whole swathes of some countries look like a big suburb). We have taken a step to such an idea with eg Local Development Orders linked to a Masterplan, as at Gravenhill (for one).

 

I am not sure how other places handle permitted developent ideas - do you need permission for a Garden Office in Holland or Germany? When guessing at such restrictions I tend to read across from jay-walking to measure the Degree of Pettyfogging-ness in a country (Sydney is a nightmare), though that is variable too.

 

Ferdinand

 

Edited April 26, 2019 by Ferdinand

[Mr Punter]

12 minutes ago, jfb said:

there is a good chance all PD rights will be removed

 

Normally the PD rights that are removed only cover extension and enlargement. Solar panels, rooflights, windows etc are normally still OK to add. 

[Ferdinand]

One thing that you can do is maintain good comms with your Planning Officer throughout, and you may be able to nudge the PO in the direction of removing that condition if you are in a position to ask, and - so to speak - nobble it early.

 

Ferdinand

 

[lizzie]

@JamesHopeful are you saying in essence that you want to build a bigger/slightly different house than you have (or will have) planning for and you do not want to go back for new application or even NMA to accommodate the changes?

 

You make references to your situation being different when comments above have been made. Perhaps if you were to elaborate it might be helpful.

 

One thing is certain PD rights do not come into existence until and unless you have a completed signed off building.  Whether or not PD rights are removed when PP is granted is a different matter and it varies from area to area.

 

LA can and do take enforcement action against people who blatantly flout the regulations and whether or not it would have been allowed under PD rights is not the issue. Every small developer in the land would be at it if PP was ignored and breaches were just waved through on the nod afterwards.  The law is the law and the rules are there for a reason if everyone decided to flout them then what worth are they.

 

Retrospectives for blatant try ons are regularly turned down and appeals are costly.

 

Do the thing properly and you wont have a problem try and think you can ‘get away with it’ and likely as not you will be hauled over the coals by LA, they dont take kindly to people trying it on. If it went any distance and even if found in your favour the costs would probably be large  plus the uncertainty during that time that you have with a building that contravenes your PP.

 

 

[Mr Punter]

25 minutes ago, lizzie said:

One thing is certain PD rights do not come into existence until and unless you have a completed signed off building. 

 

I understand that different LAs take different stances on this, where some are willing to accept a completed shell, others completed foundations and some may even ask for it to be completed and occupied for a period of time.

 

I suggest that @JamesHopeful has a chat to the LA explaining what he wants to achieve and see what they suggest.  There is no point in imagining that they will not enforce as this seems to be one area that is not so subject to budget restrictions.

[Jeremy Harris]

Our planning officer was good enough to send me a draft of the decision notice, a couple of weeks before it was signed off.  It included a clause much like that which @AnonymousBosch has quoted earlier, removing PD rights.  I asked him why PD rights had been removed, and he didn't have an explanation, so I asked for this condition to be removed, which it was.  A planning condition like this can only be imposed if it's justified by something in planning policy, and in our case it wasn't, so it was taken out before the decision notice was finally issued.  This was lucky for us, as had the decision notice have included the removal of PD rights then it would probably have been a lot of hassle to get it amended.

[Ferdinand]

1 hour ago, JSHarris said:

Our planning officer was good enough to send me a draft of the decision notice, a couple of weeks before it was signed off.  It included a clause much like that which @AnonymousBosch has quoted earlier, removing PD rights.  I asked him why PD rights had been removed, and he didn't have an explanation, so I asked for this condition to be removed, which it was.  A planning condition like this can only be imposed if it's justified by something in planning policy, and in our case it wasn't, so it was taken out before the decision notice was finally issued.  This was lucky for us, as had the decision notice have included the removal of PD rights then it would probably have been a lot of hassle to get it amended.

 

I am not sure that I would win a conversation like that, and I am not sure how I would argue it.

 

It would be interesting to see what happened in such a case taken to Appeal.

 

F

[Temp]

Would there be any side windows on the extension? These have to be obscure glass to comply with PDR. That might not be the case if you got planning permission.

 

If you add an extension/dormer during construction of the house the whole house would likely be in breach, not just the extension/dormer. That's because there is usually a condition requiring you to build the house "exactly in accordance with the approved plans". Normally planners have four years to enforce a breach of planning law but in the case of a breach planning conditions it is 10 years. The planners might not take any action but when you come to sell up the buyer might want the situation regularised.

 

In the past if you breach planning you could wait for an enforcement notice and then submit a retrospective planning application, however I have see mention that The Localism Act 2011 allows a planning authority to decline to determine a retrospective planning applications after an enforcement notice has been issued.  Not sure what implications this has.

Edited April 26, 2019 by Temp

[Ferdinand]

1 hour ago, Temp said:

, however I have see mention that The Localism Act 2011 allows a planning authority to decline to determine a retrospective planning applications after an enforcement notice has been issued.  Not sure what implications this has.

 

I think it was in part cockup, and in part an attempt to achieve some unidentifiable worthy objective which would stop people pulling fast-ones on LPAs (in the opinion of the LPA). OTOH it would allow @JamesHopeful to build a 20ft shark diving into his roof because it was an Objet D’Art.

 

But what one would do in such circumstances is perhaps to Appeal the Enforcement Notice, which would then no longer be in force pro-tem,and the PA would then be obliged to process the Retrospective PP / CLEUD (Cert of Lawful Existing Use Or Development .. I think). **

 

There’s an article about this and other nuances here, if anyone needs a catnap generator:

https://www.localgovernmentlawyer.co.uk/regulatory-and-enforcement/190-regulatory-features/36207-planning-applications-enforcement-notices-and-certificates-of-lawfulness

 

There may be a bodged fix in place by now.

 

Ferdinand

 

** Planning is to a small extent a cross between Poker and Pelmanism (“where the fook was that card I was planning to play?”), and why you sometimes need a planning consultant.

Edited April 26, 2019 by Ferdinand