Interpretation of Planning Condition

Interpretation of Planning Condition

Postby DOC » Mon Sep 13, 2010 8:26 pm

Just looking again for peoples thoughts and opinions. :)

I have just received planning permission for a client from a local authority and from An Bord Pleanala (after third party appeal) for a sizeable house extension which involves the provision of an entirely new roof structure and roof finishes to the existing house (and obviously the new extension). The house is detatched.

The roof tiles to the existing house are pretty standard suburban Dublin profiled Marley roof tiles (the ones you see almost on every suburban house from the 1950’s onwards).

On the planning drawings, for the proposed extension and new roof to the existing house, I have clearly specified that all new roof tiles are to be plain coloured concrete ‘mini’ tiles (i.e. small flat roof tiles with no profile), as per the clients wishes from the outset.

In local authorities decision, the following condition was stated:
That all external finishes harmonise in colour and texture with the existing premises.

In An Bord Pleanala’s decisions, the condition is elaborated a little further, stating:
The external finishes of the proposed extension including roof tiles/slates shall
match those of the existing dwelling in respect of colour and texture.


In one way, it’s all a bit ambiguous. In other ways it not.

My client sees no issue or ambiguity whatsoever and is forging ahead with the ‘mini’ roof tiles, because they are concrete, they match the texture of the existing roof tiles and the colour will also roughly match the existing.

I am probably reading a little more into the ambiguity of the condition than the client or I am worrying about nothing? Any opinions appreciated.

Cheers.
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Re: Interpretation of Planning Condition

Postby Tayto » Mon Sep 13, 2010 9:23 pm

My reading is that the Local Authority's decision & conditions have been superceded by the Bord Pleanala decision & conditions, so you can ignore the L.A. decision & conditions.

If the new, selected tiles are the same (or approximately the same) colour as the existing tiles and also match the "texture" of the existing (that's your call), then the roof finish should qualify as being be "in Substantial Compliance" with the planning permission.
ie. The Compliance Certificate requires the development to be "in Substantial Compliance with the Planning Orders". (That's the phrase used in the RIAI Planning Compliance Cert).
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Re: Interpretation of Planning Condition

Postby onq » Tue Sep 14, 2010 2:30 am

DOC wrote:Just looking again for peoples thoughts and opinions. :)

I have just received planning permission for a client from a local authority and from An Bord Pleanala (after third party appeal) for a sizeable house extension which involves the provision of an entirely new roof structure and roof finishes to the existing house (and obviously the new extension). The house is detatched.

The roof tiles to the existing house are pretty standard suburban Dublin profiled Marley roof tiles (the ones you see almost on every suburban house from the 1950’s onwards).

On the planning drawings, for the proposed extension and new roof to the existing house, I have clearly specified that all new roof tiles are to be plain coloured concrete ‘mini’ tiles (i.e. small flat roof tiles with no profile), as per the clients wishes from the outset.

In local authorities decision, the following condition was stated:
That all external finishes harmonise in colour and texture with the existing premises.

In An Bord Pleanala’s decisions, the condition is elaborated a little further, stating:
The external finishes of the proposed extension including roof tiles/slates shall
match those of the existing dwelling in respect of colour and texture.


In one way, it’s all a bit ambiguous. In other ways it not.

My client sees no issue or ambiguity whatsoever and is forging ahead with the ‘mini’ roof tiles, because they are concrete, they match the texture of the existing roof tiles and the colour will also roughly match the existing.

I am probably reading a little more into the ambiguity of the condition than the client or I am worrying about nothing? Any opinions appreciated.

Cheers.


+1 what Tayto has said, but I also note:

Their original local authority condition wording did not have absolute legal force.
The Bórd's wording "shall match" has absolute legal force and leaves no room for fudging or doubt.

You cannot proceed to use roofing materials that ignore this, but equally, given the intervening years in the sun, changes in range colours and weathering staining, you would be lucky to get a perfect match.

My best advice to you Doc is to contact the local authority planning officer and explain the position, requesting them to make the final call.
I would go so far as to put it in writing to them with a sample and either ask for a written reply or get a Section 5 on it.

The reason being that the Bórd have no Enforcement Function - this is reserved for the local authority only.
The local authority will be the ones taking you to court over this, so agree it with them beforehand.

FWIW

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Re: Interpretation of Planning Condition

Postby DOC » Tue Sep 14, 2010 7:29 am

Thanks Tayto and ONQ for the replies.

Yes, agree, ABP wording/condition superceeds LA wording/condition. Contacting the LA (by letter or Section 5) to try and interpret menaing/intention of wording and what they consider accepatble is probably the only route.

Thanks again.
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Re: Interpretation of Planning Condition

Postby goneill » Tue Sep 14, 2010 10:49 am

It might not be that ambiguous. Only the BP condition counts and it says the "external finish...shall match...in colour and texture". There can't be much doubt that a roof made of small flat "plain" tiles is a completely different texture to one finished in large wriggly tiles, even if the surface of the tiles themselves have similar textures.
I read a newspaper account last week of a planning appeal in England by Rowan Atkinson in which he argued (I think successfully) that "harmonises" means different from, but the Bord didn't use that word.
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Re: Interpretation of Planning Condition

Postby DOC » Tue Sep 14, 2010 11:04 am

Thanks goneill.

I think your point is concise - that's where myself and my client may differ in our intrepretations of the condition.

Colour is not an issue - there is no problem there.

There is no mention of size or profile of the roof tiles in any conditions. What my client would say is that the condition is simple - the texture of a plain small flat coloured concrete roof tile is the same as the texture of a larger profiled concrete coloured roof tile. Which is pretty much true. To the touch say a Roadstone spanish roll roof tile would have the same texture as a plain tile.

My client is taking the literal interpretation of the condition. I am taking a more universal view of what did the inspector actually mean when she wrote the condition. It's just a pity there's no easy way of finding out!
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Re: Interpretation of Planning Condition

Postby tommyt » Tue Sep 14, 2010 12:57 pm

Looks like someone doing their copy and paste in the Board forgot to insert the standard 'submit a sample of materials prior to commencement' condition. Happens regularly enough with ABP conditions. AFAIK this can be thrashed out at commencement notice stage but a writtwn note on the file/ S.5 declaration is of course preferable.
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Re: Interpretation of Planning Condition

Postby onq » Tue Sep 14, 2010 2:45 pm

Yeah, you're welcome Doc.
Happy to offer what little advice I can.
Messy situation to be in when you want to get ahead on site.

Talk to the planner, preferably a senior planner who will have a final say in referring matters to the Enforcement Section.
You have at least three routes to clarity, depending on advices received.

  1. Formal Submission of Materials with Covering Letter requiring reply.
  2. Formal Section 5 Declaration
  3. Formal Referral to An Bórd Pleanála.
"Interpretation" is not really an option in case the planners go berserk on enforcement next year.

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Re: Interpretation of Planning Condition

Postby DOC » Tue Sep 14, 2010 3:03 pm

Thanks tommyt and again onq.

Yes I agree onq, they are the 3 routes to get a formal answer on this issue.

What I will do is put these coruses of action to my client (in writing of course!) and get him to respond to me in writing. If he wants to proceed then on his interpretation, then so be it, it's on his own head.

My fear, obvioulsy along with my clients, is that they do in fact want the larger 'Marley' style tiles to match the existing, which neither of us want! The fear on the other side is that given the level of objection to the development I have no doubt the enforcement section of the LA will be visiting at some point! :)
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Re: Interpretation of Planning Condition

Postby onq » Tue Sep 14, 2010 4:43 pm

This doesn't rest with your client at all Doc.

It rests with you and the liability you are willing to take on with this small job - on behalf of your client - when you eventually issue your Opinion of Compliance with Planning Permission.
"Your mission Jim, should you choose to accept it..." is to make sure your client realises that he is obliged to carry out some form of due diligence - or you are, in his behalf - to resolve this.
This matter cannot be left hanging to suit your client, leaving your office in an impossible position when it comes around to certification.

Having thought a little about this, and quite apart from the three ways describe above, there is a fourth route - it does however involve a little bit of semantics.
The Board Condition wording is as follows; -

The external finishes of the proposed extension including roof tiles/slates shall
match those of the existing dwelling in respect of colour and texture


There is a distance between saying "the existing roof tiles/slates" and saying "those of the existing dwelling".
For example. certain works are exempted development and renewal of slates/tiles is one of them AFAICR and please confirm that you didn't include re-reoofing the original dwelling in the permission.

If you didn't, you might replace the existing tiles NOW, prior to commencement, with something you and your client like and that falls within the provision of Section 4(1)(h).
Then you could possibly use the same tiles/slates on the new roof AND issue your Opinion of Compliance later on without any difficulty.

:D

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Re: Interpretation of Planning Condition

Postby DOC » Tue Sep 14, 2010 4:57 pm

onq wrote:This doesn't rest with your client at all Doc.

It rests with you and the liability you are willing to take on with this small job - on behalf of your client - when you eventually issue your Opinion of Compliance with Planning Permission.
"Your mission Jim, should you choose to accept it..." is to make sure your client realises that he is obliged to carry out some form of due diligence - or you are, in his behalf - to resolve this.
This matter cannot be left hanging to suit your client, leaving your office in an impossible position when it comes around to certification.


This is the whole reason I am 'troubled' at this time! :) At this point, I don't want to cry wolf and put hurdles in front of the client. I told him my opinions of what the condition might mean - worst case and best case - and told him I would give it more thought. Thus I am trying to get as many opinions as possible before I go back to him for further discussion. I would naturally be very cautious. I can of course decline to issue and Opinion on Compliance if I feel I may be compromised.

onq wrote:Having thought a little about this, and quite apart from the three ways describe above, there is a fourth route - it does however involve a little bit of semantics.
The Board Condition wording is as follows; -

The external finishes of the proposed extension including roof tiles/slates shall
match those of the existing dwelling in respect of colour and texture


There is a distance between saying "the existing roof tiles/slates" and saying "those of the existing dwelling".
For example. certain works are exempted development and renewal of slates/tiles is one of them AFAICR and please confirm that you didn't include re-reoofing the original dwelling in the permission.


It's a completely new roof structure (and finishes) both to the existing house and proposed extension - as part of the proposed development is raising the entire roof (there is no ambiguity from the planning drawings that it's nothing other than a new roof) . That fact adds somewhat to the ambiguity of the issue - i.e. at the end of the day, there will be roof tiles/slates of the existing dwelling remaining! :)
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Re: Interpretation of Planning Condition

Postby goneill » Tue Sep 14, 2010 5:12 pm

Replacing large wriggly tiles with small plain ones would hardly be "renewing" and would probably not be exempted development. I mean if you've got a long road of houses like Griffith Avenue covered with large tiles and you replace one roof with plain tiles it is going to be out of character with the adjoining buildings. And in case you're in any doubt about that both the LA and BP have demanded that your new covering should match the existing. That means existing at the time of the decision, not existing at some time in the future. I don't see what's wrong with telling your client that you think it is clear that they mean they want big tiles and you're going to be issuing an Opinion which specifically excludes that condition and that if he doesnt't like that to follow one of the three routes described above. In writing as you say.
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Re: Interpretation of Planning Condition

Postby DOC » Tue Sep 14, 2010 5:23 pm

Thanks goneill for you reply - the truth hurts sometimes! Your understanding is pretty much what's at the back of my mind (my subconscious understanding too). Client devastation will possibly follow shortly!
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Re: Interpretation of Planning Condition

Postby onq » Tue Sep 14, 2010 8:08 pm

Doc,

I thought you'd be a man for wonadem ODOS solutions or a Zinc roof or whatever.

What's all this Tile Trad stuff about anyway - thought I was the trad head here.

:)

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Re: Interpretation of Planning Condition

Postby DOC » Wed Sep 15, 2010 7:22 am

onq wrote:Doc,

I thought you'd be a man for wonadem ODOS solutions or a Zinc roof or whatever.

What's all this Tile Trad stuff about anyway - thought I was the trad head here.

:)

ONQ.


:D We can't all be starchitects! :p

Still battling with the ambiguity this morning. :confused:

My latest thoughts are that the ABP condition is a simple copy and paste job and the intention of the condition is standard for any extension, i.e. the roof finishes to the proposed extension should match the existing house. The fact they have stated 'tiles/slate' leads me to believe this is a standard condition. Have re-read the ABP inspectors report and nowhere within her consideration is materials and/or roof tiles mentioned.

Yes, in this case there is an extension but also there is a completely new roof to the existing house requiring new roof finishes as well.
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Re: Interpretation of Planning Condition

Postby henno » Wed Sep 15, 2010 7:53 pm

DOC wrote::D We can't all be starchitects! :p

Still battling with the ambiguity this morning. :confused:

My latest thoughts are that the ABP condition is a simple copy and paste job and the intention of the condition is standard for any extension, i.e. the roof finishes to the proposed extension should match the existing house. The fact they have stated 'tiles/slate' leads me to believe this is a standard condition. Have re-read the ABP inspectors report and nowhere within her consideration is materials and/or roof tiles mentioned.

Yes, in this case there is an extension but also there is a completely new roof to the existing house requiring new roof finishes as well.


i normally consider these situations along the vein of "if the client had have applied specifically for this finish, would it have been an issue"...

so far you have said
1. the inspector has made no specific mention of a roof finish
2. the condition states@slate/tile' which is an indication of a copy and paste type condition
3. there is a whole new roof going on and, i assume, a consistent finish throughout
4. there is no mention of "size or profile" on this condition, just "colour and texture"
5. the relevance or not of LAP or CDP policies to the development

in the light of the above, and under the cloud of you offering an "opinion" on "substantial" compliance with the planning conditions......

if the client had have applied for these tiles specifically from the beginning, would it have been an issue????

if you think not... and are confident enough to argue this point.... i think you knwo what the next step is.

TBH seeking a decision of compliance or not from an enforcement officer, or planner, to me is passing the buck onto a person less suitable to making this executive decision. Any doubt from the planning section, which is highly likely given my past experience with LAs, will result in detriment to your clients wishes, schedule and probably budget.
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Re: Interpretation of Planning Condition

Postby DOC » Wed Sep 15, 2010 8:16 pm

henno wrote:TBH seeking a decision of compliance or not from an enforcement officer, or planner, to me is passing the buck onto a person less suitable to making this executive decision. Any doubt from the planning section, which is highly likely given my past experience with LAs, will result in detriment to your clients wishes, schedule and probably budget.


Thanks henno. Having spoken with a couple of other architects today, I agree with your statment above (some other architcets having expressed the same thoughts as yourself). In addition to your numbered points above (thanks for taking the time to summarise), we did actually specify on all drawings the intended type of roof tile, and as I said above, there was no comment on these either in the ABP inspectors report or the LA planners report.
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Re: Interpretation of Planning Condition

Postby onq » Wed Sep 15, 2010 11:04 pm

We're gone circular now.

This is where I was coming from when I pointed out that you could possibly re-roof it under Section 4(1)(h) of the PDA2000 without permission.

If you have the slates specified, simply show a sample with a covering letter to that effect, confirming that both the existing and new sections will match and get a letter confirming acceptance.

Never fails to amaze me how many architects hate talking to the planners.

:)

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Re: Interpretation of Planning Condition

Postby henno » Thu Sep 16, 2010 2:08 pm

onq wrote:Never fails to amaze me how many architects hate talking to the planners.

:)

ONQ.


when its unnecessary, its definitely something i prefer not to do. Perhaps i do not hold them in such as high a regard as you do. Once bitten and all that jazz :)
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Re: Interpretation of Planning Condition

Postby onq » Thu Sep 16, 2010 7:33 pm

Don't get me wrong - I've been lucky with most planners I'vve dealt with, but I've had my fair share of upsets.
Only this year we were given the go ahead for a scheme that would have had me on the pigs back by now.
Instead they failed to follow through on an undertaking and the scheme will be delayed for a long time.
Such is life, but in Doc's case its relatively minor and its better to be safe than sorry.

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Re: Interpretation of Planning Condition

Postby DOC » Thu Sep 16, 2010 7:39 pm

I've had a few hairy and nonsensical dealing with planners in my time - that's why I do not want to go near them! :) The phrase 'kicking to touch' comes quickly to mind in relation to dealing with them.
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Re: Interpretation of Planning Condition

Postby onq » Thu Sep 16, 2010 9:13 pm

DOC wrote:I've had a few hairy and nonsensical dealing with planners in my time - that's why I do not want to go near them! :) The phrase 'kicking to touch' comes quickly to mind in relation to dealing with them.


The ball, as they say, is in your court.

:)

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Re: Interpretation of Planning Condition

Postby Bren88 » Thu Sep 23, 2010 8:27 am

Was there ever any decision made regarding this and the route you'll take?

Some comments on various issues raised throughout.

Texture: doesn't only refer to surface texture of a single tile but rather the whole roof. I think we all know that, weather or not you want to admit it in the case of maintain your design.

Existing house: i think we all know that this refers to a match to the original roof and area, and not simply that the new matches the existing roof when complete. I think going down this route actually weakens our arguement and makes it look feable.

Copy/Paste on tiles/slates. I'm not so sure on this one. I don't think this proves it was a copy and paste job. Its much more likely to cover all the unknown. If they simply say slates only in conditions, there would surely be a case where a house was in finished in what were technically tiles, or visa versa and the condition could be argued as technically irrellevant.


At the end of the day, its your opinion and PI on the line.
and, being honest, if the client was truely happy that the choosen mini tile matched the existing and it was ok to go ahead then this discussion would never taken place.

One route is to submit a sample to LA and hope to get a go ahead. This will cover you, regardless of their original intent with the condition.
to be thats the best option, the exemption option isn't a runner imo.
Asking ABP is likely to go nowhere.

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Re: Interpretation of Planning Condition

Postby DOC » Fri Sep 24, 2010 7:08 am

Bren88 wrote:One route is to submit a sample to LA and hope to get a go ahead. This will cover you, regardless of their original intent with the condition.


Hi Bren

Have discussed and written to the client the various interpretations that could be taken from the conditions, possible outcomes, good to bad, and various means how clarification could be sought.

As you suggest above, I have recomended to the client that I make a submission to the LA outlining our interpretation and showing tile intended, afterall they enforce planning conditions.

Just waiting on client to confirm back to me (in writing) what he wants me to do. If the client chooses to instruct me not to make a submission, so be it, the client is aware of the potential outcome.

One other issue that came to light/is thrown into the mix is that I got builder to strip off a few original roof tiles and the original roof tiles are actually green! I'm sure a green roof certainly was not the intention of the LA or ABP! :p

Came across a great phrase while considering (this is quoted by David Keane in relation to planning) - de minimis non curat lex ("the law does not concern itself with trifles").
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Re: Interpretation of Planning Condition

Postby Mike Kavanagh » Fri Sep 24, 2010 9:47 am

I hope you are getting paid for all this tile style work!
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