Meeting documents

WDC Info Sheets - Development Control Committee
Thursday, 21st September, 2006

Info Sheets - Development Control Committee 2006, 1-2006 The Need for Permission for 'garden buildings'.

 

 

 

     INFORMATION SHEET

 

Development Control Committee

Issue No: 1/2006

Date Issued: 21 September 2006

The need for permission for “garden buildings”.

Officer contact:

Alastair Nicholson (Development Control Manager) Tel: 01494 421510 (ext; 3510).

Alison Pipes (Building Control Manager) Tel: 01494 421425 (ext; 3425).

 

Introduction

Many Members, mainly from wards within the urban area of High Wycombe, have noticed an increasing trend towards the construction of large brick buildings within the rear gardens of many houses.  This information sheet is an attempt to clarify the complex regulations which relate to the construction of such buildings.

 

What Requires Planning Permission?

The definition of what actually constitutes “development” and therefore requires planning permission is set out in the Town and Country Planning Act Planning 1990.   This states that “development” involves "the carrying out of building, engineering, mining or other operation in on or under land or the making of a material change of use of any building or other land".  In simple terms, with regard to houses, this means;

·

building something (a boundary wall, a house extension, a garden shed, etc), or,

·

given Wycombe’s hilly topography, any significant excavation works (such as excavating land at the front of a property and building retaining walls to create a car parking bay, or at the rear of a property excavating to create a flat area of garden), or,

·

the change of use of a house (from a “residential” use to anything else).

If everything that falls within this definition required formal planning permission then Local Planning Authorities would be swamped with applications. To avoid this situation many “minor” developments are exempt from the need for planning permission by the Town and Country Planning (General Permitted Development) Order 1995. This is known as “permitted development”.  An illustration of the types of “permitted development” that relate to a typical house is attached as Appendix A.

 

Garden Buildings

With regard to houses this allows, subject to certain restrictions, garden sheds, garages, greenhouses, etc to be constructed without the need to refer to the Planning Authority.  

These regulations are extremely complex, so complex in fact that the Government is currently consulting on proposals to radically overhaul them.  The objective of this review is to increase permitted development for what is being described as “low impact” development and therefore reduce the workload of Local Planning Authorities, while also making the regulations clear and easy to understand and implement.

At present you do not require planning permission for a garden shed, or any other building/structure, with a use incidental to the enjoyment of the house, within your garden provided that:
 

1.

It does not project in front of any wall of the house which fronts onto a highway (road, footpath, bridleway, byway), unless the highway is more than 20 metres away.

 

2.

No part of the building is within 5 metres of any part of the house (although extensions to the house can be constructed with the benefit of a different “class” of permitted development).

 

3.

The height of the building/structure does not exceed 4 metres with a pitched roof, or 3 metres in any other case.

 

4.

The total area of ground covered by buildings/structures (not including the original dwellinghouse) within the garden would not exceed 50% of the total garden area (excluding the area of the original house).

 

5.

The building does not exceed 10 cubic metres (i.e. length x width x height external measurements) if the property is a listed building or within a conservation area, or within the Chilterns Area of Outstanding Natural Beauty.

 

6.

The building is to be used for purposes ancillary/incidential to the enjoyment of the dwellinghouse (a summer house, games room, aviary, tool shed/ workshop, garage, etc).  In planning terms the house and garden form a residential “planning unit”, and the use of the building must not fall outside this residential use.

 

7.

There is not a planning condition attached to the original planning consent for the property stating that no sheds or other structures can be erected without the prior approval of the local planning authority.

 

8.

If the proposed development is not wholly within the garden of the house (this includes guttering and foundations) planning permission will automatically be required.

 

This is however only a summary of what are very complex regulations.  As a result answering a simple letter from a householder requesting clarification on whether their proposed shed requires planning permission in fact involves a significant amount of work.  It is because of this that we cannot answer such questions over the phone, or in planning reception, but instead ask that the request be put in writing, providing as much detail regarding the location, dimensions and volume of the building as possible.

 

Enforcement Enquiries

The Authority receives around 600 enforcement enquiries a year.  Of these around half relate to “householder” development, and of these many relate to sheds or other garden buildings.

In recent years we have noticed a trend towards brick built structures (often resembling small bungalows) provided with heating, lighting and often a toilet.  It may be the case that the relatively high house prices in this area are preventing people from “trading up” to larger properties, and so instead, when more space is required, they are constructing garden buildings.

If these buildings fall within the criteria for “permitted development” then they fall outside the control of the Planning Authority.   Provided that on completion their use is “incidental to the enjoyment of the house” (such as a store for domestic items, as a games room or perhaps as detached utility room containing items such as freezers, washing machines, etc) then no breach of planning control will have occurred.

From an enforcement perspective the difficulty with such buildings is when they are used for “residential annexe” purposes.  The law as it stands at the moment is somewhat confused.  In essence if a garden building is constructed as a residential annex in the first place then this requires planning permission.  The courts have ruled that the term “incidental to the enjoyment of the dwellinghouse” does not embrace primary living accommodation.

If however a building is constructed and used for some incidental use (as discussed above) for a brief period (but it must be more than a token period), it can then be used as a residential annex (by virtue of section 55(2)(d) of the Town and Country Planning Act 1990).   The argument being that the garden and house have an authorised residential use, and so the use of the garden building for residential purposes does not amount to a material change of use which requires planning permission.

Once used as a residential annexe, the concern of neighbours (and the Planning Authority) is obviously that it may at some time in the future be used as a separate independent dwelling.  Such a dwelling, usually in very close proximity to the original dwelling, would almost always fail to provide a satisfactory living environment in accordance with Local Plan policies.  Where such buildings are used as independent dwellings this nearly always results in an unacceptable breach of planning control.

The difficultly from an enforcement perspective is differentiating between a legitimate incidental use and an entirely independent residential use.  Just because such residential annexe buildings contain all the facilities necessary for day-to-day existence and is capable of being used as a separate dwellinghouse does not mean that it has or will be used as such.  If for instance it is used as either a “granny” or “teenager” annexe with the “dependant” occupier taking meals within the main house as a member of the family, laundry being washed in the main house, etc then this has been held to be ancillary to the dwellinghouse.

The problem arises when such buildings become occupied as independent dwellings completely separately from the main house.  Even when neighbours report their suspicions, gathering sufficient evidence to pursue formal enforcement action can be difficult.  Whereas measuring the building to check if it falls within “permitted development” is relatively straight forward and the results are factual.  The use of a building is however more difficult to establish, particularly the fine line between a garden building being occupied as an “annexe” or as a “separate dwelling”.

Before embarking on formal enforcement action the Local Planning Authority must have sufficient evidence that the breach of planning control has occurred, and the alleged offender can make a claim for costs should the matter end up at an Inquiry or Hearing and insufficient evidence has been produced.  If however such a breach of planning control can be shown to have continuously carried on for over four years then the use of the building as a dwelling becomes lawful and no action can be taken against it.

 

Building Control

Entirely separate from the need for Planning permission such buildings may require consent under the Building Regulations.  However, Schedule 2 of the Building Regulations 2000, as amended, allows for certain buildings to be exempt from Building Regulations.

The reason for exemptions are similar to those for Planning exemptions and the minimal Health and Safety risk to persons who may use these buildings.  Briefly a detached building must achieve the following criteria to be exempt in the following cases.

 

Case 1:  The building will have a floor area not exceeding 15m² and contain no sleeping accommodation.  It can be constructed of any building materials and positioned anywhere within the site.  This type of building is the traditional garden shed or store.

 

Case 2:  The building will have a floor area not exceeding 30 m², is single storey and contain no sleeping accommodation.  It must be positioned 1.0 m or more from any boundary of the site and can be constructed of any building materials.

 

Case 3:  The building will have a floor area not exceeding 30 m², is single storey and contain no sleeping accommodation.  If constructed of ‘substantially no combustible material’ it can be positioned anywhere within the site.

‘Substantially non combustible’ is considered as brick or block for walls, tiles for pitched roofs and flat roofs with a finish to prevent rapid fire spread.  An example would be felt finished with mineral chippings.

When a building is exempt in the above cases, the provision of some services may be controlled.  For example, the installation of foul drainage, a heating system and electrical service works would require notification under Building Regulations.

For further guidance the following cases WOULD require Building Regulation consent.

Case 4:  A detached building which is greater than 30 m².

 

Case 5: A building which has more than one storey.

 

Case 6: A building with a floor area greater than 15 m² but less than 30 m² which is constructed of combustible material and is positioned within 1.0m of a site boundary.

 

Case 7: A building used for sleeping accommodation irrespective of floor area.

The use of a building as sleeping accommodation is difficult to assess. The considerations for whether Planning consent is required, detailed above, are similar in the application of Building Regulations.

To prove a building was being used as sleeping accommodation would be uncertain.  The old concept of a ‘summerhouse’ may be compared where on a small number of occasions the building may be used overnight.  Clearly if a building is being used as permanent sleeping accommodation a Building Regulation application would be required.  In practice where property owners have been challenged on the basis of an otherwise exempt building being used for sleeping accommodation they insist it is used as a ‘dayroom’ or utility room ancillary accommodation only.

 

As a matter of Building Control Policy persons who make enquiries as to whether a Building is exempt are encouraged to write to Building Control with details of their proposal.  Written confirmation that the proposal is exempt from Building Regulations can then be given.

 

Appendix A

 

The illustration provides a summary of the types of “development” that can currently be carried out without the need to apply to the Council for planning permission.