Householders in Wales could be in for a shock if new rules proposed for home extensions by the Welsh Assembly Government (WAG) come into being. Despite being trumpeted as giving "householders greater freedom to extend their properties without needing to apply for planning permission", the new rules would exclude even some very simple little single storey rear extensions, along with most loft conversions, now currently allowed.
The WAG is proposing amendments to householders’ permitted development rights—planning permission you've already got —granted directly by Parliament itself. Most ordinary houses in Wales have had these rights for over 60 years. The WAG promises to: “Deliver a more permissive regime than exists at present…”. But would their proposals do so?
It seems not.
All is revealed in the WAG’s consultation papers. Tucked away amidst numerous rhetorical references to ‘greater’ or ‘more freedoms..’; ‘more permissive…’ etc, are some nasty little surprises. Planning experts have uncovered details which mean that most dormer roof extensions which are currently already permitted will, in future, need permission from the planners, even though the consultation documents claim otherwise.
There’s a word for telling the public you’re proposing greater freedom when in fact you’re proposing less: mendacity. The question is, did the WAG know their proposals would result in a more restrictive regime whilst telling householders the opposite? Possibly not. There is another explanation: they don’t understand the houses they’re trying to deal with.
Astonishing as it is that the public should find itself entrusting the control of alterations to their homes to people who simply don’t understand them, it would seem to be the only alternative explanation to mendacity. But is it? Does even this explanation stack up? Probably not. The WAG proposals are based on changes already made in England, introduced in 2008. The WAG participated in, and shared the consultation evidence from, work done in preparation for those new English rules.
In formulating those new rules, the CLG rejected as unworkable the very details which the WAG are now trying to sneak back in! The WAG officials cannot have not known about this. The details in question are the proposed requirements that dormer extensions should be set up the roof slope from the eaves, set down from the ridge and set in from the verge or party wall. In respect of the set up from the eaves, this can often be achieved. However, a set down from the ridge is only possible on houses with quite a high ridge. Lower ridged homes which would otherwise perfectly well accommodate a dormer extension and yet remain no higher than the ridge line, are to be excluded. This is less, not more, freedom.
The real killer, though, is the set-in from the verge/party wall: this means that the householder will not be able to locate a new staircase over the existing stairs because the new dormer cannot be positioned far enough to the side to create the necessary headroom for those new stairs. This, in turn, means that the stairs must be located elsewhere and this will usually mean losing part or all of an existing bedroom—which in turn, for most householders, defeats the object of extending the roof in the first place: creating an additional bedroom. And if they do go ahead with the stairs taking up (part or all of) an existing bedroom, they find that the stairwell—the hole in the floor—is now located slap-bang in the middle of the new room! The best of the floor area created becomes useless. Many people only discover this when its too late.
Householders’ only remaining option is to apply for planning permission for a slightly wider dormer to provide the headroom required. OK, sounds simple enough you might think, just go down the application route: trouble is, though, they’ll refuse it. So not only do the WAG’s proposals NOT enhance householders’ freedoms, they would also significantly boost the number of planning applications. You couldn’t make it up!
But it doesn’t even stop there. Worse is to come. The new bedroom enabling dormer extension is barred from permitted development and is not available by applying to the council, but the householder still has a problem; still needs a new bedroom. So he’ll have to find somewhere else to put it; some other design possibility. Quite apart from the fact that other options are extremely limited (which is why roof extensions are a popular solution in the first place), any other options are likely to require permission from the council, and that means—-yes, yet MORE planning applications! The lunatics have taken over the asylum.
The planning bureaucracies—for it is they who are agitating for these more restrictive measures—are not the slightest bit interested in either householders having more freedoms or reducing the number of planning applications. Turkeys don’t vote for Xmas. Of course, they are free to openly and transparently argue their case for their preferred degrees of control, more restrictive or not. However, trying to sneak fewer householder freedoms and increased numbers of applications into the system whilst simultaneously telling people that their proposed amendments deliver MORE freedom and FEWER planning applications is pure deception; blatant mendacity.
This is a case of public services, publicly funded, lying straight faced to the public. Householders have no choice but to trust it. But incredibly, deceiving householders about their permitted development rights is routine, widespread and has been going on for decades. Typically a householder making an enquiry as to whether or not they will need planning permission will be told that they do, even if they don’t. This is the method used by the planning bureaucracies to try and overrule householders rights; to impose their own preferences over that which Parliament has already allowed. Such practice is literally unlawful. Councils have no powers to overrule national regulations and any attempts to do so are ultra vires, and hold the public in contempt.
This is what the state system has degenerated into. A civil service upon which the public depends routinely deceiving the public; elected members entrusted with protection of public rights abandoning their primary responsibilities.
And what of the WAG’s ‘consultation’ itself? It’s comprehensive enough in its own right and has been sent out to some 180 different organizations, including, for example, The Coal Authority, The Irish Travellers Movement in Britain, Network Rail, National Air Traffic Services, Ramblers Association Wales, Welsh Water….to name but a few. But who’s missing from the list? Why, householders of course. The only people NOT being consulted in any way are those who will be most affected! With all due respect to National Air Traffic Services et al, what’s it got to do with them? Of course, it’s not easy to directly ‘consult’ every householder in the Principality. But it would not be so difficult either.
Short of writing a letter to every householder in the land, they could perhaps have mounted a publicity campaign. Newspapers, TV and radio are effective and inexpensive media for getting a message out there. But they did none of these things. Why? The answer is that they are not the slightest bit interested in whether the public know anything about it. They have no interest in householders gaining knowledge of the rights they enjoy now, let alone informing them of how those rights are to be curtailed and diminished; how the new system will demand ever increasing numbers of planning applications and fees thereon.
And such fees are set to rise: Parliament is proposing to remove the current, national cap on householder application fees of £150 +VAT and allow councils to charge whatever they like. So we can all guess which direction such costs are heading in. These fees were only introduced at all in 1981. Some rough calculations reveal that for every £100 someone earned in 1981, they would have to now earn £424 to match the increase in fees since then. The last increase was 23% in 2008 and still, apparently, its not enough to cover costs.
Its sad to have to say this, but the public generally, and householders particularly, are treated as mere fodder: fodder for the public service of development control for ever more intrusion and petty interference in minor matters; fodder as voters for the politicians. What else explains the distain for householders’ rights under national regulations and ultra vires conduct; what else explains the politicians’ disregard of the responsibility to protect those householder rights from undemocratic interference?
There is a tension between planners’ preferences and householders’ needs. The planners will always disregard the impact their preferences have on the home and the lives of the occupiers. The dormer cheek set-in preferences outlined above are a case in point. For the sake of getting a slightly bigger gap between the edge of a dormer and the edge (verge) of a roof, a trivial difference which in any case will usually be invisible from public standpoints, the planners effectively impose a massive negative impact on the inside of the house: new stairs cannot be located over existing stairs and householders end up having to lose part or all of an existing bedroom and put up with a huge hole in the floor of any new one as an alternative.
But houses are for people to live in first and foremost. The utility, welfare and quality of life for the occupiers should not be subordinated to such minor, trivial matters as the planners would prefer to impose. They would do so, of course, in the name of the public interest. But it cannot be in the public interest to seriously diminish the primary function of houses in which the public live for trivial, irrelevant reasons. It is a fundamental cannon of development control that proposals should be allowed to go ahead unless they would ‘cause demonstrable harm to interests of acknowledged importance’. And let’s be clear here, this is not an argument in favour of some kind of free for all which would allow, under PD, large, ugly two or more storey flat-roofed boxes on the sides or front of houses: permitted development highly constrains what can be done; Parliament does not grant permission for ‘inappropriate development’. By definition, if its PD it’s not ‘inappropriate development’.
Through successive permitted development regulations refined over the last 60 years, Parliament has decided largely where the line is drawn in respect of what constitutes interests of acknowledged importance’. And in that context the old regulations still in force in Wales and the new regulations introduced in England in 2008 do not recognize the planners preferred dormer cheek set-in as an ‘interest of acknowledged importance’. But do the planners respect this? Not in the slightest. Indeed, they hold Parliament’s wishes and householders’ rights in contempt. And that is contempt for the whole civil system and national laws—ironically the same law that enables them to exercise discretionary powers of control in the first place.
The commonest way in which planners will seek to overrule Parliament’s wishes and householders’ rights is to deceive householders about needing a planning application. As previously noted, this practice is routine, widespread and has been going on for years as these quotes demonstrate:
"When I first started work in a planning department some 40 years or so ago, I remember being told that whatever question a member of the public might ask, the answer is that they need planning permission. I didn’t agree with that then so left after a couple of years…and I still don’t agree now.”
“…. it would appear that some planners may have either forgotten, or have never been aware of the view that as public servants they are paid to give advice to the public and to make sure that the advice they give is accurate." (Rob Nimmo, posted on the Director's Blog, Planning Portal, March 20th 2009).
And this from Martin Goodall, a prominent planning lawyer with 30 years experience, on the same blog: “Planning officers …….also quite often call for a planning application when none is required."
There is no level playing field between what planners and householders know about permitted development. Planners know a lot; householders are rarely even aware of the existence of their rights. It is this that the planners exploit. But consider what’s actually going on here: a public servant willfully deceiving a householder into making an unnecessary planning application, complete with fees, in order to impose the council’s preferences against the will of Parliament and to the extreme prejudice of the householder’s statutory rights. They have no democratic mandate to do this. In what other field of civil life would this tyranny be tolerated?
There is only one way in which the planners’ damaging preferences should ever be in a position of overriding householders’ interests and that is if the law allows it. And the only legitimate way that could be the case is if householders were fully aware of the consequences which would flow from those interests prevailing and had collectively agreed to them, democratically. Instead of this, however, we have the opposite: householders’ rights held in contempt by an agency of the state itself; the servants become the masters and vice versa.
So it’s not surprising in this perverse, reversed system that given the opportunity afforded by proposed changes to the regulations that planners will seek to have their preferences given primacy—and to hell with the consequences for householder amenity, welfare and legitimate interests. And never mind the increase in the numbers of planning applications made necessary, never mind the loss of freedoms, never mind the national purpose of permitted development, never mind the intention of Parliament, never mind the mess it makes of peoples’ homes, never mind the cannon of ‘interests of acknowledged importance’—nothing matters more than the interests of planning departments growing their empires, boosting fee incomes and applying backward looking, out of date, default policies which are no longer fit for purpose. And that brings me to the next subject.
Bad as all this is, there’s another matter which is even worse: the failure of the WAG’s proposed amendments, as with those recently introduced in England, to conceive of linking householder permitted development regulations to whole house eco-makeovers. This is one of the biggest issues of our time—up-grading the energy efficiency of our existing housing stock, and a £150 billion project over the next 50 years or more—yet the subject is treated in proposed new regulations, in 2011, as though it didn’t exist, let alone get taken into account.
The current rules for Wales allow reasonable scope for seriously well performing improvements to be undertaken, especially on certain house types, but the proposed amendments in key areas will allow less. The new rules in England (SI 2008 No 2362) have suffered from poor interpretation, due largely to complacency at CLG, but in some important respects go a long way to providing for seriously well performing whole house eco-makeovers which meet the 80% reduction target required by the Climate Change Act. It needs to be better understood in development circles that do nothing is not an option; that minimizing change in line with old, default policies will not do the trick.
Serendipitously, the new English rules need only the smallest tweak, together with rational interpretation and robust guidance to become an excellent, workable template readily applicable to millions of popular houses. CLG don’t know this, and they didn’t have this outcome in mind when the rules were drafted, but hey ho… This is a pity because those new rules have come so close. However, in failing to go the whole way the opportunity has been squandered to provide householders with a template upon which they can act in a way which achieves the very outcome that government is fervently promoting: energy savings. We don’t have millions of different houses, we have millions of very similar houses, most of which have been built to predictable patterns, particularly floor plans. We know what’s out there and what can be done to it, so we can easily ‘type approve’ eco-makeover designs with the PD rules themselves. Simple.
But the proposed amendments for Wales would move further away from that outcome by prohibiting the take up of effective designs which achieve that 80% target. To be fair, part of the problem in the draft amendments for Wales is inherited from the poor interpretations being made in its English parent. Having brought those new rules into force on the 1st October 2008, CLG practically washed their hands of them. They issued no circular or meaningful guidance on application and interpretation despite 6 years in the making and no less than 3 separate ‘consultations’. It was August 2010 before some form of guidance eventually made its way out of the corridors of CLG—and it’s a mess. No wonder, perhaps, that the Coalition government, in publishing this guidance, prefaced the document with the caveat that it was drawn up under the previous administration!
This CLG guidance suffers from having been re-interpreted after coming into force when they realised, apparently, that some bits were more permissive than had, allegedly, been intended. Or to put that another way, exactly what Caroline Flint, then Housing Minister, had trumpeted it to be: achieving the objective of reform of allowing more to be done with less interference and resulting in fewer planning applications. Well, we can’t have that can we? Having discovered that, in some respects, the new rules did prove to be more liberal after all, despite all their efforts to ensure otherwise, planning bureaucracies’ howls of protest spooked the CLG into a desperate quest to devise a way of appeasing those interests. So, what did CLG do? They corrupted and twisted the original definition and intended interpretation of key words in the new regulations to alter their meaning to produce an outcome the planning bureaucracies wanted.
Under this pressure from planning interests CLG’s retrospective re-interpretation of the words in the Order amount to surreptitiously sneaking in through the back door far less freedom for householders. It’s worth taking a look at what government policy Circular 9/95—still in force in Wales—has to say about how planners are supposed to treat rear extensions in conservation areas where there is an article 4(2) direction in place. (NB. For readers unfamiliar with Article 4 Directions, they are areas in which permitted development rights have been curtailed locally in conservation areas through a proper democratic process. They are meant to apply ONLY to the fronts of houses, not the backs, as is robustly set out in the Circular. And "article 4 is a power of pre-emption, not prohibition" notes the Encyclopedia of Planning Law (EPL-3B-2024.2).)
Circular 9/95 APPENDIX D para. 17
“17. An article 4(2) direction may cover permitted development consisting of the erection of an extension, if any part of it would front a highway, waterway or open space. For example, in the case of a semi-detached dwellinghouse which fronts a road and whose rear and side front private land, a direction in respect of enlargement could cover a proposed extension to the front of the house or to the side of the house if a wall of the extension would front the road. However, it could not cover a proposed extension to the rear of the house, even if part of a wall or the roof of the extension would be visible from the road. The Secretaries of State are particularly concerned that the power to withdraw permitted development rights relating to extensions should be used exceptionally and only where the character or appearance of a conservation area is likely to be threatened."
Although this Circular guidance dates from 1995—and had its origins even earlier in Circular 8/87 (WO 61/81)—it was confirmed as still applicable in a consultation exercise carried out by CLG on the use and designation of Article 4 Directions between 30th July and 23rd October 2009 which notes at para. 54:
"54. Circular 9/95 specifies that permitted development rights should only be withdrawn in exceptional circumstances and that such action is rarely justified unless there is a real and specific threat. We do not propose to amend this test for the removal of permitted development rights."
So let’s get this clear. Even in an article 4(2) area within a conservation area—the most sensitive of designated areas with even fewer PD rights than plain old conservation areas— planners must not remove PD rights for single storey rear extensions even if part of them would be visible from the road (para. 17 above) and CLG confirmed this to be the case about 18 months ago (para. 54 above). Yet 12 months later, in August 2010, CLG’s retrospective re-interpretation of the meaning of “side elevation” has completely removed those PD rights, not merely in article 4(2) areas, but in plain old conservation areas generally. So, for householders that means less freedom and more planning applications. And how was this done? Not through an open and transparent democratic process scrutinised by Parliament but through arbitrary bureaucratic dictat.
So the question still hangs in the air: do CLG—and now the WAG—understand the geometry of the houses they’re regulating and are thus aware of the effects of their regulations? If so, then the claims that proposed amendments would mean greater freedoms and fewer planning applications are just mendacity. If not, and it’s the case that they don’t understand the geometry of the houses they’re regulating, then they’re grossly incompetent and cannot be entrusted with the statutory rights of tens of millions of people. And whichever of these is the case, either way, it demonstrates for all to see the disconnect between the public and those who claim to serve us.
Guest article by Stephen Ibbitson.
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Purlieu