Townsley, R (on the application of) v Secretary of State for Communities and Local Government

Permitted development rights under the General Permitted Development Order 1995 cannot be used to authorise a material departure from a planning permission while the permitted building is still under construction. Those rights arise only in relation to an existing dwelling house. A later possibility that the development could have been carried out lawfully after completion does not retrospectively make the earlier work lawful or prevent enforcement. Where a developer has undertaken a material variation without planning permission, the breach cannot be cured by relying on permitted development rights at the enforcement appeal stage.

Westminster City Council granted permission for a new dwelling house but the approved plans did not include a glass balustrade around a rear flat roof. The developer erected the balustrade during construction, later sought retrospective planning permission, and appealed against an enforcement notice requiring its removal.

The inspector allowed the appeal on the basis that the balustrade was permitted development under Class C of Schedule 2 to the General Permitted Development Order 1995. An adjoining occupier sought judicial review, challenging both the inspector’s construction of the permitted development provisions and the legality of relying on them during construction.

1. Claim allowed. The inspector’s decision was quashed and the matter was remitted for reconsideration on ground (a), namely whether planning permission should be granted.
2. The balustrade was development because it was a work of improvement or alteration materially affecting the building’s external appearance. The inspector’s reasoning that the transparent structure altered appearance but not shape was difficult to reconcile and came close to being unreasonable, although that issue was not determinative.
3. Class C of Schedule 2 to the General Permitted Development Order 1995 concerns an alteration to the roof of a dwelling house. The permitted development right cannot be used while the dwelling house is still being constructed. It cannot change what is authorised by the planning permission under which construction is taking place.
4. The material variation was not authorised by the planning permission and constituted a breach of planning control. Article 3(5) provided an additional reason why the permitted development right could not apply, because the building operations involved in constructing the building were unlawful. The observations in Sage v Secretary of State for the Environment, Transport and the Regions [2003] 1 WLR 983 concerning the unlawfulness of a building operation not carried out in accordance with permission applied to a material variation.
5. The possibility that the balustrade could have been removed and re-erected after completion, when permitted development rights might otherwise have been available, did not make the existing work lawful. Nor did it justify allowing the appeal. The relevant law had changed by 1 October 2008, and the permitted development right could no longer be relied upon for this balustrade.

The defendant was ordered to pay the claimant’s costs in the agreed sum of £14,000.