Section 73 - Raising roof height by increasing pitch?
Discussion
Apologies Equus etc, I appreciate this is how you earn your income, but if you want to jump in that's great.
Bit of background here :-
https://www.pistonheads.com/gassing/topic.asp?h=0&...
Anyway after I lost my appeal, and as advised on that thread I put in a section 73 to amend the external look of the already approved plans, more to suit my tastes such as larger windows, different design and colour, cedar style cladding and render rather than brick, those sort of things.
The risk was the LA would try to say its also a new house, so class it as a new application and claim the 106 process still stands.
The footprint, shape, location etc remained the same, apart from a balcony, and to my amazement they approved my application.
The one thing though I held back on was changing the roof shape, as I was worried that may tip the balance.
I have now submitted another section 73 which purely raises the pitch from 30 degrees to 42 degrees (which raises the ridge by a metre) and convert two side and one front hip into open gables instead.
Everything though is still the same as the original again, i.e footrprint, layout, habitable space etc (I just want to future proof the build by having the option of attic rooms later on if required)
My latest application was based on the changes to the plans of the original plus now the roof change, all to the original application approval number plus the revised approval number.
This was 2 weeks ago, the LA accepted the application, but low and behold this time they are now stating they view it as a new dwelling under a new application and want a £40k 106 yet again.
Are they simply trying it on this time, or has raising the roof height taken it all out of the realms of a 73?
Should I have just applied to make changes to the new revised approval and not referenced the original approval maybe?
Anyone come up against such when an LA has refused a 73 as it goes beyond the remit of such?
Guessing my only option may be to refute their claims, state there are sufficient case studies of larger changes approved under 73s and then take it to appeal if they refuse my 73 application? yet more time delays if I have to do that.
Thanks in advance for all input :-)
Bit of background here :-
https://www.pistonheads.com/gassing/topic.asp?h=0&...
Anyway after I lost my appeal, and as advised on that thread I put in a section 73 to amend the external look of the already approved plans, more to suit my tastes such as larger windows, different design and colour, cedar style cladding and render rather than brick, those sort of things.
The risk was the LA would try to say its also a new house, so class it as a new application and claim the 106 process still stands.
The footprint, shape, location etc remained the same, apart from a balcony, and to my amazement they approved my application.
The one thing though I held back on was changing the roof shape, as I was worried that may tip the balance.
I have now submitted another section 73 which purely raises the pitch from 30 degrees to 42 degrees (which raises the ridge by a metre) and convert two side and one front hip into open gables instead.
Everything though is still the same as the original again, i.e footrprint, layout, habitable space etc (I just want to future proof the build by having the option of attic rooms later on if required)
My latest application was based on the changes to the plans of the original plus now the roof change, all to the original application approval number plus the revised approval number.
This was 2 weeks ago, the LA accepted the application, but low and behold this time they are now stating they view it as a new dwelling under a new application and want a £40k 106 yet again.
Are they simply trying it on this time, or has raising the roof height taken it all out of the realms of a 73?
Should I have just applied to make changes to the new revised approval and not referenced the original approval maybe?
Anyone come up against such when an LA has refused a 73 as it goes beyond the remit of such?
Guessing my only option may be to refute their claims, state there are sufficient case studies of larger changes approved under 73s and then take it to appeal if they refuse my 73 application? yet more time delays if I have to do that.
Thanks in advance for all input :-)
Edited by PAUL500 on Wednesday 23 May 18:46
You're getting into the realms of potential complexity/arguments where I'd be inclined to pass it in the direction of my Planning Director (despite my possible reputation on this forum, I'm actually the architectural Director of the company, and my knowledge of Planning law is almost incidental... it's down to haveing worked with the system and in close liaison with Chartered Planners for many years, rather than a formal Planning qualification). Unlike me, she;s not daft enough to give out professional advice for nothing, but for what it's worth my view is that:
No, if they'd said it wasn't a Section 96A (non-material minor amendment), I'd have been forced to agree with them, but if all you have done is to increase the roof pitch, I think you have a good argument that it should fall within the scope of a Section 73.
Of course, you will be aware that there is no statutory definition of either a NMMA or a Material Minor Amendment - LPA's are responsible for making that judgement, themselves. If they decline to register the application, however, this article might help bamboozle them.
If they register it and then refuse it simply on the grounds that they don't consider it to be a minor amendment, then you have the right of appeal (which you don't on a Section 96A, of course).
Out of interest, when they granted your previous Section 73, did they tie it back to the original S106 by means of a supplemental agreement? (If there was one.... I can't remember if you had a 106 on the original permission or not?).
No, if they'd said it wasn't a Section 96A (non-material minor amendment), I'd have been forced to agree with them, but if all you have done is to increase the roof pitch, I think you have a good argument that it should fall within the scope of a Section 73.
Of course, you will be aware that there is no statutory definition of either a NMMA or a Material Minor Amendment - LPA's are responsible for making that judgement, themselves. If they decline to register the application, however, this article might help bamboozle them.
If they register it and then refuse it simply on the grounds that they don't consider it to be a minor amendment, then you have the right of appeal (which you don't on a Section 96A, of course).
Out of interest, when they granted your previous Section 73, did they tie it back to the original S106 by means of a supplemental agreement? (If there was one.... I can't remember if you had a 106 on the original permission or not?).
Edited by Equus on Friday 13th April 19:47
Yes, this latest 73 application is purely just raising the pitch and swapping out the hips for open gables, which was then done to the revised approved drawings granted a few weeks ago under the last 73.
I did not even put in a staircase to the attic space or any windows, velux etc, the plan was to use room in roof trusses, treat it just as storage space but maybe sometime in the future to convert it to habitable space, and as they have removed my PD rights I would have had to do such under a new application anyway.
In my latest application I did reference both the original approval number and the revised approval number, I am wondering if they are going to claim this roof change plus the previous approved 73 changes, in combination now take it past a 73 of the original approval, I guess I will have to wait and see.
They have already accepted this application as a 73 and cashed the cheque last week, so I thought they may be on a sticky wicket now saying it needs to be a full new application plus all that that entails.
No, there are no links at all to any 106 in either the original or the revised approvals, the 106 related to my completely separate new application which was refused, as I would not agree to a 106 on that particular application.
I am aware of a similar example under the same planning officer where a roof change was refused under a 73 and won under appeal about 2 years ago, so it does sound then like I just need to refute their claim, stand my ground that it is covered by a 73, reference that appeal and cross my fingers they do not want the hassle of going to appeal yet again, but this time with just the claim its not covered by a 73 and no other reason.
I stumped up the extra money and accepted the extra time by going 73 instead of non material minor amendment based on your previous advice I could actually appeal a 73 refusal unlike a non material, so thanks for that titbit as well.
I did not even put in a staircase to the attic space or any windows, velux etc, the plan was to use room in roof trusses, treat it just as storage space but maybe sometime in the future to convert it to habitable space, and as they have removed my PD rights I would have had to do such under a new application anyway.
In my latest application I did reference both the original approval number and the revised approval number, I am wondering if they are going to claim this roof change plus the previous approved 73 changes, in combination now take it past a 73 of the original approval, I guess I will have to wait and see.
They have already accepted this application as a 73 and cashed the cheque last week, so I thought they may be on a sticky wicket now saying it needs to be a full new application plus all that that entails.
No, there are no links at all to any 106 in either the original or the revised approvals, the 106 related to my completely separate new application which was refused, as I would not agree to a 106 on that particular application.
I am aware of a similar example under the same planning officer where a roof change was refused under a 73 and won under appeal about 2 years ago, so it does sound then like I just need to refute their claim, stand my ground that it is covered by a 73, reference that appeal and cross my fingers they do not want the hassle of going to appeal yet again, but this time with just the claim its not covered by a 73 and no other reason.
I stumped up the extra money and accepted the extra time by going 73 instead of non material minor amendment based on your previous advice I could actually appeal a 73 refusal unlike a non material, so thanks for that titbit as well.
Edited by PAUL500 on Friday 13th April 19:50
PAUL500 said:
They have accepted this application as a 73 and cashed the cheque, so I thought they may be on a sticky wicket now saying it needs to be a full new application and all that that entails.
If they've accepted the money and registered it, then they have to determine it (and if they don't, within the statutory timescale, you can appeal on the simple grounds of non-determination, which would take the decision out of their hands and place it with the Appeals Inspectorate).That's good news.
I can crack on with the build regardless, and by the time I get to roof level I would know the outcome of an appeal if I need to go that way.
Appreciate your feedback thanks.
LA planners really do not help the negative impression they have in the industry by playing these games.
Do they really think I would pay a £40k ransom just to raise my roof up a bit on a house I can build anyway.
I can crack on with the build regardless, and by the time I get to roof level I would know the outcome of an appeal if I need to go that way.
Appreciate your feedback thanks.
LA planners really do not help the negative impression they have in the industry by playing these games.
Do they really think I would pay a £40k ransom just to raise my roof up a bit on a house I can build anyway.
Edited by PAUL500 on Friday 13th April 21:26
Well 8 weeks and a day later and I have just received the refusal for my 73 application!
Based on the same two reasons they refused my last totally independent application for a completely separate very modern design.
This refusal is for a 73 application for an already approved typical Barratt etc L shaped detached house, the only difference being a change from a 32 degree pitch roof to a 42 degree one, which raises the ridge by about a metre and swapping out the two pitched end gables to open gables, and the same for the one at the front, the house below the fascias is identical still, as is the roof covering. The reason I did this is I want to future proof the house and install room in roof trusses. I included no dorma, velux etc or made it habitable space in this application.
A few weeks after submitting the application the LA contacted me to say they regard the roof change as now meaning its a completely new house and as such a new application, not a 73 and therefore falls under the remit of the recently introduced section 106 rules for such for which they require a £40k ransom, I again refuted this and stated its the same already approved house with just a revised roof, I never heard back from them after that until now.
Their two stated reasons are that by means of its scale and massing it forms and incongruous form of development! ( its the same bloody house with a slightly different roof style, which is surrounded by bland 1960s boxes all with such roofs!
The other is that as I would not enter into a 106 is does not meet the needs of the LAs current rules regarding new housing being required to pay 106 contributions.
The first part I can take my chances with the appeal inspector, its clearly made up just to back up the second reason, and its that second one I need the wisdom of the planning guys please.
The approved application was in 2015 prior to the LA adopting the requirement for 106 contributions for single dwellings, as a result can an LA now retrospectively apply such to an existing approval under a 73?
I suspect we are in new ground here?
The LA have already approved one 73 on this application, that being a redesign to the windows and surface finishes of the walls, for which they did not demand a 106, its the increase in roof volume they are now claiming makes it a brand new dwelling????
The existing approval is no longer extant as I have already met and had two planning conditions signed off and have removed approx 100 tons of soil to take the plot down to reduced levels for the foundations to be dug, I have also formed a new access to the plot.
By the time the inspector gets to site the founds will be in place as I can crack on with the approved design right up to sole plate of whichever roof anyway.
I would have reverted back to hips as long as I could keep the 42 degree pitch, as its the height I need but they never raised massing as an issue until the refusal. Can I offer this as an option in my appeal to the inspector?
Based on the same two reasons they refused my last totally independent application for a completely separate very modern design.
This refusal is for a 73 application for an already approved typical Barratt etc L shaped detached house, the only difference being a change from a 32 degree pitch roof to a 42 degree one, which raises the ridge by about a metre and swapping out the two pitched end gables to open gables, and the same for the one at the front, the house below the fascias is identical still, as is the roof covering. The reason I did this is I want to future proof the house and install room in roof trusses. I included no dorma, velux etc or made it habitable space in this application.
A few weeks after submitting the application the LA contacted me to say they regard the roof change as now meaning its a completely new house and as such a new application, not a 73 and therefore falls under the remit of the recently introduced section 106 rules for such for which they require a £40k ransom, I again refuted this and stated its the same already approved house with just a revised roof, I never heard back from them after that until now.
Their two stated reasons are that by means of its scale and massing it forms and incongruous form of development! ( its the same bloody house with a slightly different roof style, which is surrounded by bland 1960s boxes all with such roofs!
The other is that as I would not enter into a 106 is does not meet the needs of the LAs current rules regarding new housing being required to pay 106 contributions.
The first part I can take my chances with the appeal inspector, its clearly made up just to back up the second reason, and its that second one I need the wisdom of the planning guys please.
The approved application was in 2015 prior to the LA adopting the requirement for 106 contributions for single dwellings, as a result can an LA now retrospectively apply such to an existing approval under a 73?
I suspect we are in new ground here?
The LA have already approved one 73 on this application, that being a redesign to the windows and surface finishes of the walls, for which they did not demand a 106, its the increase in roof volume they are now claiming makes it a brand new dwelling????
The existing approval is no longer extant as I have already met and had two planning conditions signed off and have removed approx 100 tons of soil to take the plot down to reduced levels for the foundations to be dug, I have also formed a new access to the plot.
By the time the inspector gets to site the founds will be in place as I can crack on with the approved design right up to sole plate of whichever roof anyway.
I would have reverted back to hips as long as I could keep the 42 degree pitch, as its the height I need but they never raised massing as an issue until the refusal. Can I offer this as an option in my appeal to the inspector?
Edited by PAUL500 on Wednesday 23 May 18:48
PAUL500 said:
I would have reverted back to hips as long as I could keep the 42 degree pitch, as its the height I need but they never raised massing as an issue until the refusal. Can I offer this as an option in my appeal to the inspector?
TL;DRBut if the bit I've quoted above is your only question, then the answer is no.
The Planning Department must determine the application you set before them, not the one you might have set before them if you'd thought about it a bit more carefully.
Likewise the Planning Inspectorate.
PAUL500 said:
the only difference being a change from a 32 degree pitch roof to a 42 degree one, which raises the ridge by about a metre and swapping out the two pitched end gables to open gables, and the same for the one at the front, the house below the fascias is identical still, as is the roof covering. The reason I did this is I want to future proof the house and install room in roof trusses. I included no dorma, velux etc or made it habitable space in this application.
I wonder whether they're looking at it, realising that's why you're doing that change (which doesn't exactly take a major leap of logic), and foreseeing a retrospective application for the couple of Veluxes(/dormers) that, "oops", your builder "accidentally" installed while your back was turned?Sorry to butt in but this £40k s106 so called ransom.
There are a number of new developments in this neck of the woods where as an opening gambit the LA says they need s106 funding for local projects.
However the type of projects the s106 can fund is quite tight, and it becomes difficult to find schemes which would fit in with the s106.
Ultimately it means that although the LA could ask for a significant chunk, it cant just bank the money for a rainy day, so the s106 trawl doesn't happen.
Are you sure they will actually be allowed to take the £40k?
The reason for the strict criteria on s106 is to avoid it looking like a payment by a developer to a planning department to ensure their development goes through, i.e. a ransom or a bribe
There are a number of new developments in this neck of the woods where as an opening gambit the LA says they need s106 funding for local projects.
However the type of projects the s106 can fund is quite tight, and it becomes difficult to find schemes which would fit in with the s106.
Ultimately it means that although the LA could ask for a significant chunk, it cant just bank the money for a rainy day, so the s106 trawl doesn't happen.
Are you sure they will actually be allowed to take the £40k?
The reason for the strict criteria on s106 is to avoid it looking like a payment by a developer to a planning department to ensure their development goes through, i.e. a ransom or a bribe
S106's can always be challenged or negotiated on the basis of viability, but I assume the OP has been down this road already: I can't remember all the long history of discussions he's had on here about this project, but I can't imagine that renegotiation of the S106 hasn't come up before.
The LA recently changed the rules from 40 plus units requiring a 106, down to one unit or more. So yes they can now demand it, and yes at appeal the inspector did state they are entitled to, but the sum can be negotiated. For units of 10 or less they can just take the cash, it does not have to be earmarked for a particular project.
However I bought the plot with planning for a house already on it, which was granted prior to the rules being changed. So there is no surplus cash in the budget to pay a 106, I paid market price inc the planning. The seller was lucky they got the planning when they did, as they would now have had to stump up for the 106 and not been able to sell for any more than market price anyway.
My first attempt was a completely new design, on a fresh application, that is when the 106 demand was first made. I refused, they rejected, I lost at appeal.
So I took the advice from here and submitted a section 73 to modify the existing approvals external features and materials, and that was granted, with no demand for a 106. That was a few months back
I then submitted another just to raise the roof on that latest approval, that is when they made the 106 demand yet again, I refused, they rejected.
I knew I could appeal a 73 refusal, again based on the good advice from here.
My question is can they now retrospectively apply a 106 to a permission granted prior to the rules on such being changed? They clearly seem to think so, I can find no previous cases of such either way. Surely they set the precedent for "no they cannot" when they made no such demand last time on a 73 just this year?
I will appeal as its just daft to fit a roof I don't want, but it is still most cost effective to do so, finish the house then apply to raise it, rather than pay £40k just for the pleasure here and now.
Its quite clear that had I agreed to pay the latest ransom then suddenly the other reason for refusal would have just vanished! they made no mention of bulking throughout the 8 week period, only a demand for money. Had they said it was too bulky then I would have amended the application back to hips and just altered the pitch.
The other daft thing is they recently amended the rules once gain so that self builders are exempt for paying up front as long as they live in the house for 3 years after completion, so the latest application would have fallen under that rule, but I do not want to tie myself in a 3 year clause just to raise the roof a tad, as if I need to sell in that period then you have to stump up the cash anyway.
I am not against the LA having a chunk of the increased value from land with no planning to land with such, they have to pay for their housing stock somehow now the gov have pulled away all the grants, but in my case common sense shows there in no increase in value, I just want to future proof my roof.
The current permission has all PD rights removed anyway so I cannot add velux, dorma etc without applying to the LA in the future, so they still have a control.
I have a feeling I am in the usual grey area and need to just put my case forward and see what the appeal officer thinks. He did say last time if I had made a start on the existing permission, then no extra unit was being added so the 106 demand would not then be valid.
I guess if I lose this appeal I can resubmit yet again for free, with hips rather than open gables, its all the wasted time that is frustrating, no common sense being applied by the LA. I will put that option into the appeal anyway, as last time the inspector did also hint as to what could be acceptable in a resubmission.
However I bought the plot with planning for a house already on it, which was granted prior to the rules being changed. So there is no surplus cash in the budget to pay a 106, I paid market price inc the planning. The seller was lucky they got the planning when they did, as they would now have had to stump up for the 106 and not been able to sell for any more than market price anyway.
My first attempt was a completely new design, on a fresh application, that is when the 106 demand was first made. I refused, they rejected, I lost at appeal.
So I took the advice from here and submitted a section 73 to modify the existing approvals external features and materials, and that was granted, with no demand for a 106. That was a few months back
I then submitted another just to raise the roof on that latest approval, that is when they made the 106 demand yet again, I refused, they rejected.
I knew I could appeal a 73 refusal, again based on the good advice from here.
My question is can they now retrospectively apply a 106 to a permission granted prior to the rules on such being changed? They clearly seem to think so, I can find no previous cases of such either way. Surely they set the precedent for "no they cannot" when they made no such demand last time on a 73 just this year?
I will appeal as its just daft to fit a roof I don't want, but it is still most cost effective to do so, finish the house then apply to raise it, rather than pay £40k just for the pleasure here and now.
Its quite clear that had I agreed to pay the latest ransom then suddenly the other reason for refusal would have just vanished! they made no mention of bulking throughout the 8 week period, only a demand for money. Had they said it was too bulky then I would have amended the application back to hips and just altered the pitch.
The other daft thing is they recently amended the rules once gain so that self builders are exempt for paying up front as long as they live in the house for 3 years after completion, so the latest application would have fallen under that rule, but I do not want to tie myself in a 3 year clause just to raise the roof a tad, as if I need to sell in that period then you have to stump up the cash anyway.
I am not against the LA having a chunk of the increased value from land with no planning to land with such, they have to pay for their housing stock somehow now the gov have pulled away all the grants, but in my case common sense shows there in no increase in value, I just want to future proof my roof.
The current permission has all PD rights removed anyway so I cannot add velux, dorma etc without applying to the LA in the future, so they still have a control.
I have a feeling I am in the usual grey area and need to just put my case forward and see what the appeal officer thinks. He did say last time if I had made a start on the existing permission, then no extra unit was being added so the 106 demand would not then be valid.
I guess if I lose this appeal I can resubmit yet again for free, with hips rather than open gables, its all the wasted time that is frustrating, no common sense being applied by the LA. I will put that option into the appeal anyway, as last time the inspector did also hint as to what could be acceptable in a resubmission.
Edited by PAUL500 on Thursday 24th May 15:03
sorry if youve been aroun dthis already
https://www.gilmartinley.co.uk/articles/s106-affor...
edit - O k i read the other thread - youre in wales
article said:
This means that the change in planning policy which came into force in December 2014 now applies again: affordable housing contributions are not payable on schemes of 10 or fewer units.
herehttps://www.gilmartinley.co.uk/articles/s106-affor...
edit - O k i read the other thread - youre in wales
vale of glamog said:
The rest of the Vale of Glamorgan
Within the rest of the Vale of Glamorgan the Council’s Affordable Housing policy requires all residential sites resulting in a net gain of 1 or more dwellings to provide an element of affordable housing:
In areas with a 40% requirement, this would work as follows:
1 dwelling - financial contribution only (AHC x 0.4)
Within the rest of the Vale of Glamorgan the Council’s Affordable Housing policy requires all residential sites resulting in a net gain of 1 or more dwellings to provide an element of affordable housing:
In areas with a 40% requirement, this would work as follows:
1 dwelling - financial contribution only (AHC x 0.4)
Edited by saaby93 on Thursday 24th May 13:44
Regarding the 106 payment, are VofG one of the only/few councils who are applying 106 agreements to self-builds?
I was under the (possibly misguided) impression that self-build would attract a CIL payment (although you’d then get a self-build exemption) as there’s no Infrastructure impact as such.
I was under the (possibly misguided) impression that self-build would attract a CIL payment (although you’d then get a self-build exemption) as there’s no Infrastructure impact as such.
Its upto each LA whether they go CIL or 106 in their development plan. Most go CIL now I believe but VOG stuck with 106 as they can potentially squeeze more out of developers than under a structured framework. Under a CIL they could only have received about £15k instead of the £40k they want.
They did however relent in Feb of this year and introduced a self build exemption in line with those of the CIL policy. I do not want a potential big debt such as that hanging over the project until 3 years after completion though. £15k I could live with.
I can build the current house anyway without that risk, just frustrating that I cannot put a more practical roof on it at this stage.
They did however relent in Feb of this year and introduced a self build exemption in line with those of the CIL policy. I do not want a potential big debt such as that hanging over the project until 3 years after completion though. £15k I could live with.
I can build the current house anyway without that risk, just frustrating that I cannot put a more practical roof on it at this stage.
PAUL500 said:
Its upto each LA whether they go CIL or 106 in their development plan. Most go CIL now I believe but VOG stuck with 106 as they can potentially squeeze more out of developers than under a structured framework. Under a CIL they could only have received about £15k instead of the £40k they want.
They did however relent in Feb of this year and introduced a self build exemption in line with those of the CIL policy. I do not want a potential big debt such as that hanging over the project until 3 years after completion though. £15k I could live with.
I can build the current house anyway without that risk, just frustrating that I cannot put a more practical roof on it at this stage.
You'll be surprised how quickly 3 years passes, especially if you can determine as soon as you can when the 3 years begins - wouldn't worry about itThey did however relent in Feb of this year and introduced a self build exemption in line with those of the CIL policy. I do not want a potential big debt such as that hanging over the project until 3 years after completion though. £15k I could live with.
I can build the current house anyway without that risk, just frustrating that I cannot put a more practical roof on it at this stage.
I own no other properties as a result of my divorce, so yep it is very much a very tight budget led self build!, which if my circumstances were to change again could mean I would have to sell it either during construction or soon after, so I simply cannot risk having even more money taken off me that has already happened!
This thread is more a sounding off for me, I will dust myself down and carry on regardless, I always do.
Having gone through the greyness of the family court system then planning seems to be very much the same. No one can give black and white answers, as interpretation of the rules change from LA to LA it seems.
This thread is more a sounding off for me, I will dust myself down and carry on regardless, I always do.
Having gone through the greyness of the family court system then planning seems to be very much the same. No one can give black and white answers, as interpretation of the rules change from LA to LA it seems.
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