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Lawfulness under the GPDO

The High Court has recently ruled on two aspects of the interpretation of the General Permitted Development Order (GPDO).

The first point is likely to be of relatively limited application, and turned on the interpretation of paragraph A.2(c) of Class A of Part 1 of Schedule 2. This provides that on Article 1(5) land development is not permitted if "the enlarged part of the dwelling house would have more than one storey and extend beyond the rear wall of the original dwelling house." The High Court confirmed, in accordance with the published technical guidance, that this was to be read as meaning the wall next to the proposed extension, thus preventing any first floor rear extensions on Article 1(5) land. This conclusion is consistent with and tends to confirm the technical guidance in relation to all rear extensions which provides that where the rear wall of a property is stepped the extension tolerance is to be taken from by the nearest portion of the wall. There is no room to argue-for example-it should be taken from the furthest part from the property for the entire rear extension.

The second point is likely to be of more general interest. Here the Court grappled with the question of what is the effect on permitted development rights if part of a dwellinghouse is unlawful. Article 3(5) provides that permitted development rights do not apply if "in the case of permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful". The Inspector had said this must be read with Article 1(2) which provided that building includes part of a building) so that if part of the dwellinghouse is unlawful, permitted development rights cannot pertain. The High Court agreed with this analysis.

Therefore, at least in relation to Class A of Part 1 of Schedule 1 which deals with rights in relation to a dwelling house, there will be no permitted development rights in relation to that property if part of it is unlawful. Evidently if the unlawfulness is corrected (through an application for planning permission or removal of the unlawful aspect) then permitted development rights could once again be relied upon. The application of this principle in respect of other parts of the GPDO remains open to argument.

Clare Parry, of Cornerstone Barristers, represented the Secretary of State.