Extension, Green Belt, Words

A district council recently lost a Planning Court case on whether, to be an extension of an existing building, a new building must be physically attached. Simon Ricketts analyses the judgment.

My ear-worm for this blog post is a 40 year old song by Spandau Ballet. Possibly not originally about home improvements in the green belt, with one word changed its chorus goes like this:

Reasons, reasons were here from the start,

It’s my extension,

It’s my extension.

Reasons, reasons are part of the art,

It’s my extension,

It’s my extension.

Words are important. If you engage a competent lawyer, their toolbox will be full of precise words, as short as possible for the job, together with the necessary interpretation widgets, i.e. case law. 

If you engage a competent builder and say to them that you would like an extension to your house, would you both be assuming that, inherent in the word the word “extension”, it would need to be attached to the house rather than, say the replacement of an outbuilding by a larger structure down the garden 20 metres away from your house?

Your lawyer now has the very widget to resolve that question, in the form of Warwick District Council v Secretary of State (Eyre J, 12 August 2022).

It is a really important question if your house is in the green belt, because you don’t have to demonstrate “very special circumstances” where specific exceptions in paragraph 149 of the NPPF apply. Two of the exceptions are as follows:

“c) 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;

d) the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces;”

If an out-building falls within (d), the size of its replacement is obviously constrained by the fact that must be “not materially larger than the one it replaces”. But what if the replacement were actually to be interpreted as an extension to the house itself, such that you just have to show that the replacement “does not result in disproportionate additions over and above the size of the original” house? Gold!

Over to Eyre J in the Warwick case:

“The Second Defendant’s property is in Vicarage Road in Stoneleigh. The village of Stoneleigh is “washed over” by the West Midlands Green Belt. The Second Defendant’s property consists of a Grade II timber-framed cottage (“the Cottage”), a garden, a garage, and a currently disused timber structure. 

That structure has a footprint of 10.2m2 and appears to have been originally used as the garage for the property but that use has been superseded by a more recently-built garage. This timber structure is in the garden of the Cottage but is approximately 20m from the Cottage itself. The Second Defendants sought permission to demolish the timber structure and to replace it with a garden room/home office with a footprint of 16m2.”

Warwick District Council had refused the application, taking the position that paragraph 149 (c) did not apply. On appeal, the inspector disagreed: 

“9. Framework paragraph 149 (c) permits 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 existing building was the original garage to the house and as such could reasonably be considered to have been a normal domestic adjunct to it. Likewise, the proposed outbuilding would be used for purposes clearly related to the occupation of the dwelling. It would be in the same location on the site, relatively close to the dwelling and within a group of buildings closely associated with it. Therefore, I am satisfied that the proposed out building can be considered as an extension to the dwelling. 

10. The evidence before me is that there have been various extensions to the original building and a detached garage. Planning permission has recently been granted to replace the rear single storey extension with something similar in scale and the garage is relatively small in relation to the dwelling. The proposed outbuilding would be located behind this building and would be much smaller in scale compared with the host dwelling. Given the modest scale of these existing additions and the limited additional footprint from the proposed outbuilding, I find that the proposal, in combination with previous additions, would not result in disproportionate additions to the host dwelling.”

The inspector allowed the appeal and the Council challenged the decision. Eyre J concluded as follows, after analysis as to the normal meaning of the word “extension” and then the policy context within which it is used in paragraph 149 (c) (the Council = Claimant, the Secretary of State = First Defendant):

“Looking at the matter in the round no one of the points advanced is conclusive by itself but I am persuaded by the combined weight of the points advanced by the First Defendant. It is right to note that if the language of [149(c)] were to be considered in isolation from its context then the Claimant’s interpretation of the words used would be the more natural reading of those words. It is not, however, the only legitimate reading of the words and the First Defendant’s interpretation that an extension of a building can include a physically detached structure is also a tenable reading of the words used. The First Defendant’s interpretation is, in my judgement, the reading which accords considerably more readily with the content and purpose of the relevant part of the NPPF. While the Claimant’s interpretation has the potential to lead to artificial distinctions which would do nothing to further the purposes of the Green Belt whereas that advanced by the First Defendant would remove the risk of that artificiality without jeopardising those purposes. Accordingly, I am satisfied that [149(c)] is not to be interpreted as being confined to physically attached structures but that an extension for the purposes of that provision can include structures which are physically detached from the building of which they are an extension.

If, as I have found, an extension can be detached from the building of which it is an extension the Inspector did not err in law in granting planning permission and this claim fails.”

I don’t know if Warwick will be applying for permission to appeal. As a humble jobbing planning lawyer I’m not sure I would have predicted the conclusion to which Eyre J came. Surely an “extension” to something is by definition connected to that thing? Isn’t that so unambiguous that you do not then look at the policy ramifications? But my views are irrelevant and I suspect we shall be seeing an increase in proposals by the owners of large homes in the green belt for the construction of out-buildings, relying full square on this case. And the larger the house, the easier it will be to show that the “extension” is not a “disproportionate addition” – it’s the planning law equivalent of regressive taxation!

Of course any politician’s toolbox is also full of words, there to serve a different purpose: not to define, but to win elections – and the two words “green belt” are right there near the top. 

Does Rishi Sunak for instance really believe, or understand the real-world implications of, what he has been saying in relation to the green belt, in terms of tightening current restrictions? See e.g. Rishi Sunak: I’ll save Britain’s ‘precious’ green belt (Telegraph, 27 July 2022). 

Or last week, according to twitter:

“We will stop urban mayors trying to push development out to the Greenbelt in largely Conservative areas. I will stop that from happening.”

Odd isn’t it? Owners of large homes in the green belt will be cock-a-hoop over the Warwick ruling (the larger the home, the more advantageous the ruling) and yet, without drawing breath, no doubt fully behind politicians who say no development in the green belt.  Or at least, whether or not Sunak wins, (back to my ear-worm – take it away Tony Hadley…) it’s my instinction.

NB On the subject of words, spoken and written, we have two clubhouse Planning Law Unplanned sessions of interest coming up fast:

• At 6 pm on Tuesday 30 August 2022, we have Dave Hill, who of course runs On London and is one of the leading commentators on London planning and development issues, to talk about his recent book, Olympic Park – a fascinating story of the politics, deal-making and sheer collective endeavour that delivered London 2012. Invitation here. 
• At 6 pm on Monday 12 September 2022, we have barrister and broadcaster Hashi Mohamed, to talk about his forthcoming book, A home of one’s own – his very personal take on the housing crisis, its causes and some possible solutions. Invitation here.

Simon Ricketts is a partner at Town Legal. This article first appeared on his Simonicity blog.