Clarify 2.5m height planning rule for outbuildings

[Pheo]

Usage has to be incidental to the dwelling house, so if you put in a kitchen and bathroom potentially they could claim it’s ancillary as you could use it as a separate dwelling, this would trigger planning. But I’m not sure a bathroom would on it’s own.

They should write to you, you can ask them to clarify their comment and specifically why they made it?

[Pheo]

Wow that’s a big one!

[Equus]

anonymous said:

[redacted]

You have my sympathy.

The rules on Permitted Development are national, however.

Pheo said:

Usage has to be incidental to the dwelling house, so if you put in a kitchen and bathroom potentially they could claim it’s ancillary primary as you could use it as a separate dwelling, this would trigger planning. But I’m not sure a bathroom would on it’s own.

This (as amended) is correct, but the important word is the I've highlighted in bold: the LPA may thump their chest a bit, but the critical factor that they would need to demonstrate for the purposes of enforcement is that the building must have been used as (or rather, if you're splitting hairs, that its purpose was) primary accommodation from the outset.

And the reason I've highlighted that last phrase is has separately been established by case law that there is no material change of use or development (under the definition embodied in Planning law) to change the use of a building from incidental to primary accommodation... it is C3 before the change, and it's C3 afterwards. Therefore if it's built and initially used as incidental accommodation, then changed to primary, there's not a damned thing they can do about it, provided the primary use remains as part of a single household. There is also no qualifying period for the original incidental usage, so in theory (provided you can give sufficient evidence to prove it) you could build, say, a garage under PD, park your car in it for a week, then convert it to a bedroom or kitchen.

Where there is a potential breach of planning, and where it becomes a bit of a grey area, is where the occupation of the building becomes sufficiently independent of the main dwelling that it could be viewed as a separate household.

TL:DR version: you can put what facilities you like within a PD outbuilding, provided you don't use it as a separate dwelling. To be on the safe side and avoid arguments, however, it's generally recognised that the soft option is not to provide the full suite of accommodation that is necessary for a building to function as an independent dwelling (ie. bedroom, kitchen and sanitary facilities). Any two of the three are generally fine.

anonymous said:

[redacted]

In respect of your links:

There is NO requirement under the GPDO for domestic outbuildings to be reasonably required. The wording under the GPDO is that they must be required for a purpose incidental to the enjoyment of the dwellinghouse, but there is no test of 'reasonable necessity' on the requirement. I haven't heard of it personally, but from the first link it seems that some LPA had decided to chance their arm by arguing that the word 'required' implied reasonable necessity... and it sounds like the courts have clearly and quite properly told the LPA to do one.

There is a test of 'reasonable necessity' for agricultural PD (the wording there is that the development must be "... reasonably necessary for the purposes of agriculture within that {agricultural} unit"), but it would be impossible to apply such a test to a domestic dwelling because you'd end up with the Catch-22 situation that the only accommodation that is reasonably necessary for a building to function as a dwelling is primary accommodation, and the GPDO makes it clear that the only accommodation that is acceptable under PD is incidental.. If you were to accept the test of 'reasonable necessity', Class E domestic PD rights would implode in a puff of logic.

The second link basically demonstrates/reinforces what I've just said above.

Edited by Equus on Saturday 19th September 16:50

[Pheo]

Atleast I was nearly right. Thx Equus.

[PhilboSE]

Thread update.

My application for a Lawful Development Certificate was approved yesterday:



Of particular relevance to this thread is the Site Level plan, which clearly showed groundworks for an intended levelling of a sloping site by 300mm from existing ground height where it would meet the building:



So, very pleased and my build will be much easier and better as a result. Got the digger booked for Tuesday week, then the fun really begins.

[RichyJC]

Heya thanks for the very useful thread/post.

Did the planning officer come out to see you or was it approved as Lawful remotely?

[Equus]

RichyJC said:

Did the planning officer come out to see you or was it approved as Lawful remotely?

Whether they did or not, I'd observe two things:

1) It's the drawing that is important: the drawing demonstrates 'only just' compliance ('cos that's all you need!) with the rules, to within 10mm. of overall height, and most Planners/Planning Authorities simply don't have the technical capability to take site levels to the degree of accuracy required to actually assess that on site. Which is why the approval notice gives the statement that it relates expressly to the approved documents: they're effectively saying "we're taking your word for it that the drawings are an accurate reflection of the proposal".

Whether they visited site or not (they should have, as a matter of professional due diligence) is somewhat academic, therefore: they will have been relying entirely on the veracity of the drawings, and the wording of the Certificate is their get-out-of-jail-free card on that.

2) Because of the alteration in ground level, it only really works as a LDC by prior approval (ie. sought before undertaking the work). It's not the sort of thing I'd have wanted to try retrospectively, or in response to enforcement: it would have been too big a risk (they could have failed it on the grounds that there was 'insufficient evidence to demonstrate compliance', if you were unable to prove the prior ground levels).

[PhilboSE]

RichyJC said:

Heya thanks for the very useful thread/post.

Did the planning officer come out to see you or was it approved as Lawful remotely?

It was approved remotely, the P.O. did not attend. But the quality of my documentation was great! (The picture above knocked up in Paint was by far the worst one, the others were all proper site location/elevation documents that I was able to re-use from some earlier development on the property that was done by professionals.

Equus said:

Whether they did or not, I'd observe two things:

1) It's the drawing that is important: the drawing demonstrates 'only just' compliance ('cos that's all you need!) with the rules, to within 10mm. of overall height, and most Planners/Planning Authorities simply don't have the technical capability to take site levels to the degree of accuracy required to actually assess that on site. Which is why the approval notice gives the statement that it relates expressly to the approved documents: they're effectively saying "we're taking your word for it that the drawings are an accurate reflection of the proposal".

Whether they visited site or not (they should have, as a matter of professional due diligence) is somewhat academic, therefore: they will have been relying entirely on the veracity of the drawings, and the wording of the Certificate is their get-out-of-jail-free card on that.

At the time (Covid/lockdown), they weren't even attending proper developments for normal Planning & Building Control, so it wasn't a great surprise that they didn't want to come out for my little PD project.

Equus said:

2) Because of the alteration in ground level, it only really works as a LDC by prior approval (ie. sought before undertaking the work). It's not the sort of thing I'd have wanted to try retrospectively, or in response to enforcement: it would have been too big a risk (they could have failed it on the grounds that there was 'insufficient evidence to demonstrate compliance', if you were unable to prove the prior ground levels).

Indeed. I had come to the conclusion that I wanted an LDC for 2 reasons: (1) to support future re-sale of the property and to avoid a buyer's conveyancing solicitor from demanding proof of compliance for the building and (2) because I rather suspected my antsy neighbour would kick up a (wholly unjustified) stink when he saw me building it - so having the LDC in advance would allow that issue to be shut down at the first hurdle.

For the neighbourly reason, I also wanted to avoid going to full Planning because then my neighbour would have been informed and would have objected, which would not have prevented the building being built but I just didn't want his objection on record for posterity.

Site restrictions meant I couldn't go bigger than 5m x 6m anyway so doing it all under PD and staying under BC limits made my life a bit easier. The neighbour moved last year and the new neighbours are lovely so everything's worked out fine.

There's a build thread here (which needs updating), but this shows the sloping site details and why levelling was better all round than elevating. The eaves height of my building is only just higher than the fence between the properties.

[Equus]

PhilboSE said:

But the quality of my documentation was great! (The picture above knocked up in Paint was by far the worst one, the others were all proper site location/elevation documents that I was able to re-use from some earlier development on the property that was done by professionals.

If the Planner had been properly on the ball, of course, they would have insisted on existing and proposed levels to ODN (or at least to a reliable local datum on site), in order that compliance could be checked later, if required.

But the sad truth is that Planners are often too over-worked (and insufficiently technically minded) to be that thorough.

[PhilboSE]

Equus said:

PhilboSE said:

But the quality of my documentation was great! (The picture above knocked up in Paint was by far the worst one, the others were all proper site location/elevation documents that I was able to re-use from some earlier development on the property that was done by professionals.

If the Planner had been properly on the ball, of course, they would have insisted on existing and proposed levels to ODN (or at least to a reliable local datum on site), in order that compliance could be checked later, if required.

But the sad truth is that Planners are often too over-worked (and insufficiently technically minded) to be that thorough.

I had a professionally prepared topographical survey of the entire plot with full elevation data which was submitted. I’ll admit my application was probably better documented than most.

[Equus]

PhilboSE said:

I had a professionally prepared topographical survey of the entire plot...

You should have really shown the ODN levels on your section drawing, as well, then: at least a proposed slab level from which the eaves and overall heights could be measured.

If a proposed slab level was shown on the site plan, the Planner could have worked it out for themselves, of course.

[PhilboSE]

Fair enough, naivety on my part. Though the cross section diagram was taken was at the highest part where original ground level met the proposed site, and a datum point on the topographical survey wasn’t in a similar location, so might have been confusing and would have required extrapolation.

It was all 100% above board so any site visit would have confirmed the details and based on my understating of PD and the advice in this thread, the LDC award would have been a formality. I suspect that from the demonstrable quality of the documentation and the understanding of PD (and prior interactions with the department) they were willing to give me the benefit of the doubt. Or they were just too busy / Covid restricted to come out.