Appeal 3275230

The appeal is allowed and the planning permission Ref 21/0493/FUL, for removal of Condition 5 (Removal of Permitted Development Rights) pursuant to planning permission 10/1861/RSP ([name]: Single-storey side/rear extension, removal of rear chimney, new rooflight to front and alterations to fenestration including new doors) at [site address] , Chorleywood [postcode] , granted on 26 April 2021 by Three Rivers District Council is varied by deleting Condition 2.

The appeal site comprises a detached dwelling along [address]. This part of the lane is characterised by a variety of detached dwellings in a range of designs and sizes, sited on large spacious plots. Most notably, the appeal property occupies a plot substantially larger than neighbouring properties. The site is also located within the Metropolitan Green Belt.

The application subject of this appeal (Ref 21/0493/FUL) sought the removal of Condition 5, in respect of planning permission 10/1861/RSP ([name]: Single-storey side/rear extension, removal of rear chimney, new rooflight to front and alterations to fenestration including new doors).

On the information before me planning permission 10/1861/RSP has been implemented. Condition 5 of that permission removed permitted development (PD) rights for development under several classes of Schedule 2, Part 1 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO), including extensions (Class A), roof extensions and alterations ([name] and C), outbuildings (Class E) and hard surfaces (Class F). PD rights have also been removed in respect of the erection, maintenance or alteration of a gate, fence, wall or other means of enclosure (Part 2, Class A).

Planning application Ref 21/0493/FUL was approved. However, as set out above, Condition 2 of this permission still removes PD rights under Part 1, Class A of the GPDO.

Against that background and having regard to the reason for the disputed condition and the Council’s submissions, the main issue is whether this condition is reasonable and necessary in the interests of protecting the Green Belt, the character and appearance of the area and the living conditions of neighbours.

The Planning Practice Guidance states that ‘conditions restricting the future use of permitted development rights ... may not pass the test of reasonableness or necessity’.

Schedule 2, Part 1 of the GPDO sets out the PD rights for development within the curtilage of a dwellinghouse. These rights apply generally to all dwellinghouses, with specific exceptions for some classes. Rights under Class A, for example, do not apply on Article 2(3) land. This is defined in the GPDO as, inter alia, land within a conservation area, an area of outstanding natural beauty, a National Park, and a World Heritage Site, but does not include land falling within the Green Belt.

Given the specific areas of land included under Article 2(3), it can be surmised that the omission of land within the Green Belt from the list was intentional on the Government’s part, and as a result, land within the Green Belt is regarded as no different in terms of the application of PD rights as land outside of it. Furthermore, the requirement of the National Planning Policy Framework (‘ the Framework’) is that planning conditions should not be used to restrict national permitted development rights unless there is clear justification to do so. Therefore, the starting point is that PD rights should remain in place, even in the Green Belt, unless clear justification is advanced which is specific to the site.

According to the Council, the existing extensions to the dwelling represent a 42% increase on the original floorspace and that this exceeds the 40% maximum increase as set out within the Council’s adopted SPG: Extensions to Dwellings in the Green Belt. Based on this, the Council concludes that the existing extensions represent disproportionate additions to the original dwelling and any further enlargements, improvements or alterations would also represent disproportionate additions. However, the full details the previous extensions nor the SPG are before me. In any event, given that the previous extensions were allowed it is likely that these were acceptable having regard to local and national Green Belt policies. Indeed, ‘Informative 1’ of the Council’s decision notice in respect of planning permission 10/1861/RSP, supports this. Therefore, the existing extensions, irrespective of their design and scale do not in themselves provide ‘clear justification’ for removing PD rights.

[name] recognise that disproportionate additions are a form of inappropriate development in the Green Belt, the majority of existing dwellings across the Green Belt retain and may exercise PD rights without reference to the effect on the openness of the Green Belt, even where extensions are proposed which, under a planning application, may be regarded as disproportionate. Many will also have been subject to previous extensions, as is the case with this dwelling. The circumstances described by the Council are not therefore unique to the appeal site.

Moreover, the fact that PD rights have not been removed for land in the Green Belt means that the Government’s fundamental Green Belt aims of preventing urban sprawl by keeping land permanently open do not extend to preventing permitted development within a domestic curtilage. Given this position and bearing in mind the limitations of the GPDO in terms of size and position of development permitted, I am not persuaded that the site circumstances are such, that extensions to the dwelling would have such an effect on the openness of the Green Belt or its purposes that removal of PD rights is justified.

Based on the limitations of PD rights, these often result in enlargements, improvements or alterations that have due regard to the character and appearance of an area or to living conditions. However, it is nonetheless possible for homeowners, in implementing these rights, to affect the character and appearance of the area or the living conditions of neighbours in a way that the Council would not have found acceptable had a planning application been necessary. Therefore, I consider that imposing Condition 2 to protect the living conditions of neighbours or the character and appearance of the surrounding area, of themselves, do not constitute the ‘clear justification’ referred to in the

Other than being located within the Green Belt, there is nothing to suggest that the site lies in an area that has a special character or is subject to particular landscape protection. Indeed, there is great variety in the scale and appearance of properties along this section of the lane. As such and given the limitations of the GPDO that I have already mentioned, the streetscape in general would cope with some further visual variation in built form that could result from the implementation of PD rights.

Though the appeal property extends to near the full width of its plot, this type of arrangement is not uncommon along [address] and despite being in a rural location, the appeal property forms part of an established residential area. As such, I am not persuaded that the appeal site is particularly vulnerable to urbanisation or that by utilising PD rights, this would result in any unacceptable harm to the character of its wider rural setting.

As already stated, the appeal property occupies a substantial plot and despite the extent of the existing dwelling, there is nothing to suggest that its siting and spacing from neighbouring properties is so different from the general arrangement along [address], to necessitate the removal of PD rights in the interest of safeguarding the living conditions of neighbours.

Furthermore, there is no certainty that an occupier would utilise PD rights in a way that conflicted with Green Belt policy, the character and appearance of the area or the living conditions neighbours.

For the above reasons, it has not been shown that there is ‘clear justification’ for the removal of ‘permitted development’ as set out in the Framework.

Accordingly, Condition 2 is not reasonable or necessary in the interests of protecting the Green Belt, the character and appearance of the area or the living conditions of neighbours. Therefore, the removal of this condition in itself would not be contrary to the Green Belt aims of Policy CP11 of the [name] (adopted October 2011) (CS) and Policies DM2 (Green Belt) of the Development Management Policies Local Development Document (LDD). There would also be no conflict with Policies CP1 and CP12 of the CS and Appendix 2 of the LDD, which together seek to secure developments that are of high design quality which reflect the character of the area and safeguard amenity.

The Council’s reason for Condition 2 also refers to LDD policies DM1 which largely relates to new residential development and the subdivision of dwellings and DM3 which is specific to heritage assets. These are therefore not directly relevant to this appeal.

In light of the above, and mindful that I am not creating a new approval but rather that my decision is to be read in tandem with the decision notice dated 26 April 2021, I conclude that the appeal should be allowed, and planning permission Ref 21/0493/FUL varied by the deletion of Condition 2.