Evans v The Secretary of State for Communities And Local Government

On Article 1(5) land, an enlargement of a dwellinghouse having more than one storey is not permitted development where it extends beyond the rear wall of the original dwellinghouse. The restriction applies to the part of the rear wall immediately adjacent to the extension at the same vertical level.

Under article 3(5) of the Town and Country Planning (General Permitted Development) Order 1995, permitted development rights connected with an existing building do not apply if building operations involved in constructing any part of that building are unlawful. A permitted development right may constitute a fallback position, but its materiality and weight must be assessed separately.

The claimant sought under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision dismissing an appeal against refusal of retrospective planning permission for extensions to a dwellinghouse in an area of outstanding natural beauty. The inspector also dismissed an appeal concerning a lawful development certificate, but that decision was not challenged.

The claimant argued that the rear first-floor extension fell within Class A of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995, and that the inspector had wrongly concluded that unlawful existing works prevented reliance on other permitted development rights. The issues were the construction of paragraph A.2(c) and the effect of article 3(5).

1. Application dismissed. The court adopted the broad or common-sense approach to construing a development order stated in English Clays Lovering Pochin & Co Ltd v Plymouth Corporation [1973] 2 All ER 730.
2. Paragraph A.2(c) imposes two cumulative conditions: the enlargement must have more than one storey and must extend beyond the rear wall of the original dwellinghouse. The relevant rear wall is the part immediately adjacent to the extension at the same vertical level. Accordingly, on Article 1(5) land, an extension of more than one storey beyond that wall is not permitted development. The provision is not rendered meaningless by that construction.
3. The conclusion remains consistent where the rear of a two-storey house has a pitched roof and no first-floor rear wall. A first-floor extension would require alteration to the roof, which is excluded on Article 1(5) land by paragraph B.1(e).
4. Article 3(5) must be read with the definition of “building” in article 1(2), which includes any part of a building. Where permitted development is granted in connection with an existing building, the rights do not apply if building operations involved in constructing any part of that building are unlawful. The court rejected the narrower construction advanced by the claimant.
5. The inspector adequately considered the fallback position. Consistently with Gambone v Secretary of State for Communities and Local Government and Wolverhampton City Council [2014] EWHC 952 (Admin), the decision-maker had to determine first whether the possible development was a material consideration and then what weight it deserved. The inspector identified the possible single-storey rear extension and certified front extension, assessed the likelihood and harm of those alternatives, and took them into account.
6. Any deficiency in the inspector’s reasoning concerning paragraph A.2(c) caused no substantial prejudice because he proceeded on the legally correct interpretation.

The claimant’s earlier planning appeal decision was quashed by consent by the High Court on 24 June 2013 and remitted for reconsideration. A different inspector then dismissed the planning appeal. The present section 288 claim was dismissed.