Court rejects green belt homeowner’s extension as disproportionate to the original building, even if not to his existing house.
So, Government inspectors are not always right and can be challenged.
A senior judge found that a planning inspector erred when he granted consent for a substantial extension of a house in the village of Normandy, representing a major victory for Guildford Borough Council.
The decision means that, in deciding whether such extensions are proportionate, planners will, in many cases, have to delve back to 1 July 1948.
That was when the Town and Country Planning Act of 1947 came into effect, establishing the modern planning control system.
The date is significant because the size of extensions in the green belt must be measured against that of “original” buildings in place at the time.
The judge’s ruling represented a significant victory for Guildford Borough Council, which opposed the works proposed on Foxwell Cottage, Hunts Hill Road.
Christopher Weeks proposed converting the garage to habitable accommodation, with two-storey side and rear extensions.
Three dormer windows, to be accommodated by a raised ridge height, and a single-story side extension to the main house was also proposed.
The court heard that Foxwell Cottage and the garage were built under a planning permission granted in 2003.
They were constructed on a site which overlapped with that of a somewhat smaller bungalow which had been demolished.
The council refused planning permission for the development, the size of which it considered… “disproportionate.”
However, that decision was reversed by a planning inspector who granted planning consent in May last year.
The council’s challenge to the decision hinged on Policy P2 in the Guildford Local Plan, which substantially reflects the terms of the NPPF.
The policy states the conventional test that inappropriate developments in the green belt, including the construction of new buildings, will only be permitted in very special circumstances.
It makes an exception, however, for the extension or alteration of a building
“provided that it does not result in disproportionate additions over and above the size of the original building.”
The “original building” means either “the building as it existed on 1 July 1948” or, if no building existed at that time, the first building that was constructed on the relevant site after that.
In his decision, the inspector measured the scale of the extension against the size of Foxwell Cottage as it was at the time of the application. He found that the wings would represent a “modest” increase in floor space of about 23-28.6 per cent.
The council, however, asserted that the long-demolished bungalow was the “original building” on the site and that the inspector should have taken its smaller footprint as his baseline when assessing the proportionality of the extensions.
Upholding the council’s challenge, Judge Milwyn Jarman KC said: “What must be considered is not the building as it existed at the time an application for extensions or additions is made, but the building as originally built.
“This is likely to be directed at avoiding the cumulative effect of extensions and additions, which may be modest in themselves but which may cumulatively amount to disproportionate development.
“Had the intention been to make the replacement building (i.e. the current Foxwell Cottage and garage) the baseline for evaluating the proportionality of any extension or addition, it would have been easy to say so.
“It is clear from the Policy P2 definition of ‘original building’ that what must be considered in the evaluation exercise is the original building as it existed on the coming into force of the 1947 Act or the first building as originally built after that date.”
The inspector, the judge ruled, departed from the “natural meaning” of Policy P2 and “impermissibly elided” two of its provisions, one related to extensions or alterations and the other to replacement buildings.
He concluded:
“Had the square meterage of the demolished building been taken into account in the evaluation exercise of proportionality, then a materially larger percentage in the total uplift (in floorspace) would have been arrived at.
“In my judgment, therefore, the inspector’s decision must be quashed and the appeal must be re-submitted for redetermination.”
Guildford Borough Council v Secretary of State for Levelling Up, Housing and Communities & Anr. Case Number: CO/2321/2022
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