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The worst permitted development loopholes

September 16, 2011

At number one: the worst permitted development loophole

We received an interesting email earlier this week alerting us to the existence of a new presentation on the top ten permitted development loopholes. The presentation, written by development control planner Steve Speed of website Planning Jungle, highlights what he says are ten examples of problems and flaws with the current version of government permitted development legislation.

We won’t show all ten loopholes here – you’ll have to go to Steve’s website for the full Top of the Tops-style experience. But we can reveal that, in at number one, is the “as much as possible” (pictured above left). According to Steve’s presentation, the following classes of legislation allow the extensions and alterations shown on the image:

– Class A: allows the replacement or insertion of windows (with no restrictions on the number, position, or size of the new windows).
– Class A: allows the single storey side extension.
– Class B: allows the hip-to-gable roof extension and the full-width rear dormer.
– Class C: allows the re-roofing of the front roof slope (with no restrictions on materials).
– Class C: allows the insertion of front rooflights (with no restrictions on the number, position, or size of the rooflights).
– Class D: allows the erection of the front porch (with no restrictions on materials).
– Class E: allows the erection of the outbuilding (with no proper restrictions on the size of its footprint, or on its proximity to the main house).
– Class F: allows the hardstanding in the gardens (with no restrictions on the area covered, so long as the porous requirement is met).
– Part 2 Class A: allows the erection of walls, fences, gates, etc (up to 2m high along the side boundaries of a front garden).
– Part 2 Class C: allows the painting of any part of the existing building (including the painting of previously unpainted brickwork).

Before the 'as much as possible'

If you were wondering, the image to the right shows what the dwelling looked like before the work took place.

Steve says that the examples in his documents represent only the tip of the iceberg of the problem. He says that it only covers some of the loopholes in the legislation (i.e. development that is allowed that was never intended to be allowed). A far bigger problem not covered by the presentation is all of the ambiguities in the legislation, he says.

The presentation is available here.

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18 Comments leave one →
  1. Dave M permalink
    September 16, 2011 11:15 am

    Wow. The presentation makes some serious points. Shame it is let down by by the fact that it is peppered with errors (chimneys is wrong, hard standings is wrong) and things that are not in fact loopholes, more thngs that the author does not like.

    • RichardW permalink
      September 16, 2011 11:32 am

      Steve actually acknowledges the loophole/dislike issue at several points in the presentation Dave. What’s really shocking are the number of issues which were identifed in the review of PD as flaws; but not corrected in the redraft of the legislation.

    • September 16, 2011 7:07 pm

      Hi Dave M,

      I’m the author of the document.

      I’d be interested if you could let me know which parts of the document you think contain errors. I’m pretty confident that most of the interpretations in the document are supported either by the DCLG “Technical Guidance”, or by the majority of relevant appeal decisions. This doesn’t mean that every such interpretation is definitely “correct”; there have been many contradictory appeal decisions meaning that it’s sometimes impossible to be certain of what is the “correct” interpretation. However, I believe that it’s possible to support most of the interpretations in the document with this type of significant evidence.

      You refer to an issue about “chimneys”. Is this about the removal of a chimney, or the painting of a chimney, or something else … ? If about the removal of a chimney, then this should be possible under Part 1 Class G, although I realise that on slide 13 I’ve put this under Part 1 Class C by mistake. If about the painting of a chimney, this this should be possible under Part 2 Class C.

      You also refer to an issue about “hard standings”. The hard surfaces that I’ve shown in the document should be possible under Part 1 Class F, which would allow the entire curtilage of a property to be covered with hard surfaces, subject to compliance with the porous requirements. In the illustrations, the hard surface shown in the front garden could be porous block paving, as described by page 13 of the DCLG “Guidance on the permeable surfacing of front gardens” document (September 2008). The hard surface shown in the rear garden could be any material.

      If you could let me know which parts of the document you think contain errors, then this will allow me to either correct them, or to state why I think they are supported by evidence.

      Thanks,
      Steve

  2. Jon Fox permalink
    September 16, 2011 11:35 am

    Although I do take all of this with a pinch of salt, and I support development management as well as reasonable regulation of development I do find the implied desire to close the loopholes worrying. Closing these loopholes would essentially tip the balance towards over regulation and is exactly what gives planners a bad name. Do we really want to control everything, and impose our notions of good and bad development on everyone, everywhere, all the time ? Apologies for the sense of humour failure !

  3. Edward Walpole-Brown 111. permalink
    September 16, 2011 11:50 am

    Seeing what is going on at Dale Farm, it looks as if the nation will be subject to the conditions imposed in Kenya with the United Nations getting themselves involved. So is the great Localism Bill and all involved likely to have been just a waste of time?
    Europe, arguably perhaps, is folding but it will make a change to fly out to Nairobi to attend a ruling parliament there instead. The weather will be better during the colder winter months of the northern hemisphere!!
    Mr.Speed has missed the most fundamental of points. It is now not a matter of The global Economy but also a matter of The Global Planning System.

  4. McBain permalink
    September 16, 2011 1:03 pm

    An excellent presentation and one that would no doubt go down a storm with Parish Councils everywhere, particularly those in “chocolate box” constituencies like Midsommer! I wonder if he did his own illustrating – those images are of a much higher quality than most found in Council guidance leaflets.

    I find myself agreeing to a degree with Mr Fox though, do we really want to regulate everything that could conceivably be done to alter a house? Those few DC officers that are left doubtless have enough on their plates.

    • September 16, 2011 8:23 pm

      Hi McBain,

      (I’m the author of the document).

      Thanks for your comments. I did all the illustrations in Google SketchUp – it’s not necessarily the easiest program to learn, but it’s free to use and there are some very good free tutorial videos around.

      I think most of the loopholes shown in the document (apart from numbers 7 and 6, which I acknowledge are not necessarily loopholes) could be closed without making the legislation overly restrictive. For example, with outbuildings, the legislation could be amended to require them to be separated from the main house by a specified minimum distance (as was done in the previous version of the legislation), and amended to restrict their footprint to a specified maximum area (as was recommended by the 2007 government review paper). This would still allow houseowners to erect outbuildings of a decent size that would be perfectly suitable for what most people want.

      Also, although I think that certain parts of the legislation need to be made more restrictive – I also think that other parts need to be made more permissive. For example, I personally think that Part 1 of the GPDO should be expanded to cover flats, so that a house converted into flats would be able to undertake most of the same types of alterations and extensions as a typical house, such as a rear dormer, a single storey rear extension, etc. This single change in itself would make far more things “permitted development” than would be removed by closing the loopholes.

      Overall, I really think that the quality of the legislation could be significantly improved (which would help everyone), and that the legislation could be made much more effective at allowing acceptable development and preventing unacceptable development. In contrast, the current version of the legislation doesn’t properly achieve any of these aims; it fails to prevent unacceptable development on houses (e.g. by containing so many loopholes), whilst also failing to allow acceptable development on flats. Hence why it’s possible for a house to erect a 30m2 outbuilding just 5cm away from its main rear elevation (see appeal decision APP/T0355/X/10/2121005) whereas a flat can’t even erect a 5m2 small shed in its rear garden.

      For ideas as to how DCLG could improve the quality of this legislation, please see the “Suggestions for how to produce a higher quality Part 1” document on my website.

      Thanks,
      Steve

  5. September 16, 2011 5:38 pm

    PDRs are nationally set and will have differing impacts depending on the locality in which they are used. Mr Speed points out a few oddities that in some cases would only apply in a small minority of sites.

    Rather tha over regulating to cover a very small number of cases I would argue that planning departments should be more responsive and proactive in their use of tools such as Art 4 and LDOs to cover these sorts of exceptions rather than expecting national legislation to cover everything. If these loopholes are occurring on the ground I would therefore say that it is councils who are at fault for not planning properly for their local area.

  6. September 17, 2011 2:48 pm

    Hi DM,

    Thanks for your comments.

    I’m afraid that I strongly disagree with the idea that local Councils should try to address these loopholes via Article 4 directions, rather than central government addressing them via correcting the legislation.

    Take, for example, the first loophole in the document (“Number 10”), whereby a property with a principal elevation that faces away from the highway can erect an unlimited front extension. This loophole is due to the fact that the legislation rules out extensions that extend beyond the principal elevation only if the latter fronts a highway. It would be a very simple matter for central government to close this loophole, by simply amending the legislation so that it would rule out all extensions that extend beyond the principle elevation.

    In my opinion, such an amendment wouldn’t be particularly controversial. After all, how many people actually think it’s reasonable that a minority of homeowners can exploit a loophole to erect a front extension under permitted development rights … ? Furthermore, I disagree that such a change would constitute “over regulating” – it wouldn’t affect the existing rights of the vast majority of homeowners, it would just prevent the really extreme cases that were never intended to be allowed in the first place.

    Now, suppose that instead of the above solution (i.e. central government correcting the legislation), local Councils tried to address this same loophole via Article 4 directions. Firstly, this would require each of the 400 (or so) local Councils in England to identify every property in their borough with a principal elevation that faces away from the highway, which would cost a very significant amount of public money. Secondly, I’m pretty certain that it wouldn’t be legally possible for local Councils to issue Article 4 directions to cover all of these properties, because government guidance makes it clear that such directions can only be used “in exceptional circumstances”. Thirdly, it would be very difficult for local Councils to remove the rights of these properties to erect front extensions without also removing other Class A rights, which would result in a much more restrictive situation for these properties. And fourthly, this would then create 400 (or so) more Article 4 directions around the country that agents would have to examine and take into consideration, which would create more work for them.

    In my opinion, it would be much better for central government to address these loopholes simply by correcting the legislation, rather than local Councils trying to address them via Article 4 directions.

    Thanks,
    Steve

  7. thefterian permalink
    September 18, 2011 1:04 am

    The document is based on misplaced assumptions about the role of planning, the role of local authorities and the behaviour of home owners.

    First though I would say that these are not strictly loopholes. They are more perhaps a demonstration of what is feasible. Without being pedantic, the examples demonstrate the limit of what could be legally achieved, whereas a loophole seems to me be something a bit more dodgy, covert and harmful for the purpose of some kind of gain, albeit lawful. In other words, a circumvention. The examples demonstrated by this document are not a circumvention, but something, just very simply permissible and doable.

    However, I get to my next point in a different order and deal with homeowner behaviour (and aspirations). Would people really want to do build these structures? Can people really afford these kind of extensions, how feasible are they, how practical are they, how useable. Yes people might want largeish extensions at the front and at the back and maybe a bedroom at the roof with raised head height for a staircase and a garden building for nice summer days, but in reality, 99% of home owners value their garden space, value a space for parking at the front and not everyone wants to be antagonistic to their neighbours. So yes, although the examples may – and I am not convinced – be pd, the number of people who undertake this is really going to be small. The cost of these things really are going to be astronomical for people, and although its easier to get a building works loan rather than a mortgage from the bank these days, I have doubts that people would really be paying the hundreds of thousands of pounds for big extensions such as these illustrated when they could move upsize.

    In any case, whats wrong with a hip to gable roof extension or a largeish front extension, or a large outbuilding. As someone else has said already, this purely a vehicle for personal development type prejudices. I agree with them. Yes we should protect quality architecture and design of all ages, especially as architecture and design is a visual manifestation of history and society from the earliest buildings that we have in this country of the roman and norman eras to the elizabethan and victoria eras and beyond, even the barrett box estates on the city edge of the 1980s. But it doesnt mean that we should prevent development, and if householder wishes to extend their property with a bit of help from pd so be it.

    Planning is not a rigorous code. It never has been and should never be. There should be a freedom of expression and a freedom of design to allow extensions that accommodate the specific needs of that property. Planning should not be a prescriptive over burdening and over regulating tool symptomatic of the nanny state. We dont have that form of society. Planning should protect from harm, but it should enable and facilitate. It is also fundamentally the spatial and geographic representation of the government’s social, economic and environmental policy, ensuring people have houses, transport and employment and the infrastructure to sustain a nation while ensuring that people can live harmoniously alongside these uses. PD is a sideline to all this and is of significantly lesser importance and planning should not micromanage to this degree. Planning shouldnt necessarily control but manage as is now the lingo. Manage expectations, manage aims, ambitions and practicalities.

    To try and prevent the examples shown in the document, the PD regs would have to extend its scope, add further criteria and generate more contradictions and become ever more prescriptive and restrictive to the extent that nothing happens

    I would go on to say, that the 335 local authorities (plus a few LDCs) do not want to be taking on the task of dealing with extra applications for householders because of that. Nor would people want to be either befuddled by extra complications or prevented by extra red tape when the real bigger picture is out beyond the back gardens and the cul de sacs.

    I would say that the greatest majority of single dwelling house properties outside of CAs, AONBs and not LBs in the country (perhaps more than 90% and I admit that is a wild stab in the dark), are rectangular or L-shaped footprint with a main frontage to the road. And as such, the alterations to them are going to be fairly standard and orthodox – a full width rear dormer, a couple of rooflights, a ground floor rear extension and a shed. Whats wrong with that? To start legislating for the small handful of differently orientated, differently shaped or differently located properties, just in case they have megalomaniacal designs is not really a sensible use of parliamentary time, legislation and certainly not what the 1947 Act intended. Remember, that legislation is ever evolving, being iterated, tested, repealed and updated. No law is perfect and the planning legislation is not perfect. Course it has its faults, but the author wants it to be perfect in word, content and implementability but forgets that it can never be that way. The law moves with the times and will change again in a few years time to account for and predict for new times and eventualities. We cannot reach the holy grail and make it the status quo enshrined in granite for ever.

    I would stress and repeat one point in case its forgotten. PD sets out limitations to shape development. These are not loopholes. Householders are not going to be building these just to circumvent an obligation.PD exists first and foremost. People are entitled to extend within the scope of the limitations.

    A tax loophole is where one escapes paying tax and where the initial aim is to avoid paying tax. People are not going to choose to say, I want to build a full length rear outbuilding and giant front porch, just because they want to avoid Class A etc.

    The examples are potentially feasible, but they largely imagined scenarios with no basis in reality and aspiration. Hardly anyone will want to push the envelope of the regs that far. Yes every borough will have one or two that will exploit for their own ends and plead naive innocence, but in reality, people wont and I think any calls to legislate against the minority of examples are certainly misplaced. I dont want to work in a planning system that results from one person’s obsessive prejudice that every piece of planning legislation or regulation is endemically faulty.

    • Tom permalink
      September 19, 2011 7:52 am

      With respect I don’t think you understand the problems which can result from this kind of situation.

      The planning system is not rigid, however this legislation is for what people can do without any consent. These situations could occur on the boundary of someone’s property without them having a say and result in a serious loss of amenity and quality of life. That is not what the plannign system is for. Its there to protect the rights of neighbouring properties in balance with allowing the landowner to developer their property.

      To say that these situations are unrealistic is just a little naive. Right now I have an LDC in for the last example Steve gives, the one where the applicant is putting in for everything they can do on a detached dwelling wihch does not front the highway. I doubt they will acutally do it, but it extalishes a fallback position which becomes material if they apply for another development which does need permission but is at present contrary to local planning policy. Yes I know the fallback position also takes into account the realistic possibility of actually implementing it but it does assist in overriding locally adopted policies.

      The legislation is badly worded, and people will take advantage of that, these things will and do get built and have impacts on other properties. Unfortunatly people are not as considerate towards others as we would like them to be. What makes it worse is that all these, and more, were pointed out to hte government at consultation stage, and yet were ignored.

      Steve – keep up the good work, your site is brillant and your work is very much appreciated.

    • September 19, 2011 8:24 am

      Hi thefterian,

      Thanks for your comments.

      I’m afraid that I disagree with most of the points that you’ve made in your post.

      You state in your post that the examples in my document are “not loopholes”. With the exception of numbers 7 and 6, which I acknowledge on slides 17 and 21 are not necessarily loopholes, I’m pretty certain that the people who drafted this legislation and the MPs who supported this legislation never intended or imagined that they were allowing anything like these types of examples. Not only do the various government review papers, consultations, accompanying letters, and guidance documents, etc, give no indication of anything even close to these types of examples, but furthermore some of these examples are directly contrary to the intentions that are stated in these background documents.

      Take, for example, loophole “number 3”, whereby an attached house can erect a two-storey wall along its boundary with a neighbour. The previous version of the legislation allowed a maximum height of 4m along the boundary. In the government review papers, it was stated that this 4m height of extensions along (or close to) a boundary could “give rise to adverse Level 2 [Adjoining Neighbours] impacts”, and it was recommended that the height of such extensions should be reduced. This recommendation was accepted by central government, who introduced limitation A.1(g) that restricts the height of the eaves of an extension close to a boundary to a maximum of 3m. It therefore seems clear that the intention was to change the previous system of being allowed a wall along a boundary at height 4m to being allowed a wall along the boundary rising from height 3m (eaves) to height 4m (ridge-line). Unfortunately, by making this and other changes, it now appears possible (as shown in loophole number 3, and by appeal decision APP/R1845/X/10/2137298) for an attached house to erect a two-storey wall along its boundary with a neighbour. If this type of example doesn’t fit within the definition of a “loophole”, then I really don’t how anything could fit within such a definition. It certainly fits within the definition of a loophole just as well as the tax examples that you’ve given, because it involves people choosing to erect a two-storey wall along their boundary despite the fact that it’s clear that this type of work is directly contrary to the intentions of the legislation.

      You also state in your post that to try to prevent the examples shown in my document, “the PD regs would have to extend its scope, add further criteria and generate more contradictions and become ever more prescriptive and restrictive to the extent that nothing happens”. I’m sorry, but just because the only ways you can see of closing these loopholes would cause these other issues, doesn’t mean that other ways aren’t possible. In my opinion, most of these loopholes could be closed in relatively straightforward ways that wouldn’t affect any other types of extensions.

      In my document, and in my posts above, I’ve given several examples of relatively straightforward ways that some of these loopholes could be closed. As a further example, take the issue mentioned above (“number 3”), whereby an attached house can erect a two-storey wall along its boundary with a neighbour. The fundamental cause of this loophole is that the legislation tries to protect neighbour amenity by applying the 3m eaves height limit (A.(g)) to extensions close to a boundary, but then fails to apply the 4m maximum height limit (A.1(e)) to such extensions. It would be relatively straightforward to amend the legislation such that for extensions close to a boundary, the 3m eaves height limit AND the 4m maximum height limit would both apply, rather than just one of them. This would directly accord with the intentions of the legislation, and wouldn’t affect any other types of extensions.

      There seems to be a significant contradiction that people argue that the examples shown in my document shouldn’t be addresssed because so few people use them, and yet also argue that stopping this very small number of people from using them would make the overall system too restrictive.

      Thanks,
      Steve

    • Jon Fox permalink
      September 19, 2011 9:45 am

      What he said !

      • Jon Fox permalink
        September 19, 2011 10:32 am

        Thefterian – agreed – not loopholes but PD

  8. jogyog permalink
    September 19, 2011 8:53 pm

    I tend to agree with thefterian really. Yes the author has demonstrated that GPDO can create some rather perverse and maybe unattractive forms of development, but really what is the likelihood of anybody actually formulating some of the developments in the document and saying that, yes, that really is what I am going to do to my house. Given the thousands of applications across England utilsing the CLOPUD/CLEUD process every year, the actual number of unorthodox developments described being realised is maybe just a few hundred at the very very most. Is it really worth it changing the regs just to prevent the minority. Its like taking a warehouse of sledgehammers to crush a cornflake.

    I think also that Mr Speed may have misinterpreted the tax loophole analogy. Tax avoidance is the intended outcome which benefits from the exploitation of a loophole. I cannot see how most of these developments would be the intended outcome of someones development aspirations. What “could” happen as in the list is different to “does” happen or what people “want” to happen. Until the latter happens, it cannot be a loophole.

    There is also now a danger maybe that this gives ideas to unscrupulous developers to carry out some of thes developments. Maybe the list should simply have been private correspondence between the DCLG and Mr Speed rather than the whole world.

    But maybe soon, localism may do away with all of this……

    • Tom permalink
      September 20, 2011 11:04 am

      Jogyog – These things can and do happen. There are unscrupulous people out there, and yes its a minority, but would you be quite so blase if a 4m wall was erected right next to your boudnary, blocking almost all natural light, without you even being able to have a say on it? Somehow I doubt it.

      As Steve said above, these are loopholes in that they are clearly contrary to the stated intention of the legislation. They are easy to fix with relatively small amendments.

      The agruement that just because something is technically allowed by legislation means that is should be allowed, is flawed. These situations are clearly not intended and are a result of inadequate legislation, and rather than sticking its head in the sand and pretending nothing went wrong, the government should fix it and make the legislation do what it intended to do.

      Can you think of anyother industry where a complete cock up would not be corrected? I can’t.

    • September 20, 2011 12:24 pm

      Hi Jogyog,

      Thanks for your comments.

      For most of the examples shown in my document, I’ve seen similar examples either completed in real life or allowed in appeal decisions. Although I accept that the majority of homeowners would not wish to undertake these types of extensions, I think that the minority who do is probably more significant than many people think.

      I also disagree with the idea that these loopholes shouldn’t be addressed just because they are only exploited by a minority of people. Some of these loopholes (such as numbers 10, 4, 3, 2) have the potential to very significantly harm neighbour amenity, and others (such as numbers 10, 8, 5, 1) have the potential to very significantly harm the streetscene. I would ask anyone who argues that these loopholes shouldn’t be addressed whether they would continue to hold this view if their next-door neighbour were to build some of these loopholes … ? This is not an unrealistic question, because there are already ordinary people around the country who have been significantly affected by these loopholes.

      As another point, I would argue that Part 1 of the GPDO should be amended, not just to address these loopholes, but also to address the many ambiguities in the legislation. Although the DCLG “Technical Guidance” has been a very significant help in clarifying a number of the ambiguities in the legislation, there are still a number of major ambiguities that remain. For example, there is no-one in the country who can give a definite answer to certain very basic questions, such as “how should a basement extension be treated under PD”, “can you replace timber windows with UPVC windows”, and (in a number of specific situations) “how should a proposed extension be treated if it would join onto an existing extension”.

      Amending the legislation would give the opportunity not only to address the loopholes, but also to resolve some of these remaining major ambiguities. And, as explained in one of my posts above, rewriting the legislation would also give the opportunity to expand the legislation to cover flats, so that a house converted into flats would be able to undertake most of the same types of alterations and extensions as a typical house, such as a rear dormer, a single storey rear extension, etc. This single change in itself would make far more things “permitted development” than would be removed by closing the loopholes.

      Your point that I could have sent my document to DCLG, rather than making it available more generally, is a very valid point. However, I started sending documents to DCLG raising some of these loopholes in October 2008, the same month that the legislation came into force. It’s now almost 3 years later, none of these loopholes have been addressed, and most of them are now widely known by agents and regularly used. The aim of my document is to highlight some of these loopholes in a visual way, in an attempt to encourage the government to amend or rewrite the legislation.

      Thanks,
      Steve

  9. September 21, 2011 8:44 pm

    Planning Jungle Steve Speed is an absolute hero and Central Government should give him the required resources to completely rewrite the lot of it; subject to later consultation. He is obviously the most savvy person on the planet with regards to this piece of legislation, and he is clearly fair-minded and yet passionate about its impacts. Let’s not be prissy about his use of the word ‘loopholes’, or whether people ‘would’ or ‘would not’ do such things. Some people drive at 69mph an hour, some at 169mph; just because only a few do the latter does not mean we should not try and prevent it. In the day-to-day realm of development control/management this document is used constantly, and it should be clear, accurate and fair. It currently is not. SS could rewrite it for a small percentage of the millions it would save in fewer applications, fewer legal wrangles and unhappiness. More power to his elbow.

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