Dormer as Exempt Development?

Re: Dormer as Exempt Development?

Postby goneill » Thu Jul 08, 2010 4:23 pm

I wouldn't rely on my local friendly planning department for guidance because its default postion is that practically everything needs planning even when it patently does not. Many architects are happy to go along with this (and I'm not suggesting you are Tayto), because it avoids the need for them to give hard advice they are willing to stand over, and because it generates fees. In my own case I have twice advised clients that they did not need for permission for development where the LA thought differently. In the first they initiated enforcement proceedings, and reference was made to BP, which decided in our favour. In otherwords, the people who you would seek friendly advice from were wrong. In the second case i sent them DK's article above, explained why I thought it relevant, and they gracefully withdrew. And I don't know why you're being so aggressive. My initial point was that if a development is exempt, why would it have to comply with the development standards of a LA? (as opposed to the Bldg Regs)
goneill
Member
 
Posts: 160
Joined: Thu Aug 03, 2006 5:36 pm

Re: Dormer as Exempt Development?

Postby esterelle » Thu Jul 08, 2010 4:27 pm

A useful Bord Pleanala reference (Inspectors Report) can be found at the link below.
I have pasted in a section here especially for Tayto's benefit and also Wearnicehats. The Inspector Philip Jones has recently become Deputy Director of Planning in An Bord Pleanala.

Two relevant Board references have been referred to in the file correspondence.
These are as follows:-


Under reference file RF0794, the Board decided, on 28th April 1997, that the
installation of four velux roof light within the rear roof area of a dwelling in
Bishopstown, Cork, was exempted development, as it came within the scope of
Section 4(1)(g). It also decided that the conversion of the attic space into a
bedroom was not development, as it was not a material change of use of the
dwellinghouse concerned.

Under reference file RF1041, the Board decided, on 27th February 2002, that the
provision of three rooflights on the north facing slope of a house in Mount
Merrion, Dublin, came within the scope of Section 4 (1)(g) of the 1963 Act, and
was therefore exempted development. The judgement in the court case cited by
the owner in the current case (Cairnduff v O’Connell) is included in an Appendix
to the Inspector’s report on that file. (The present writer was the Inspector in this
case.)

It should be noted that, in the case of file RF0794, the rooflights were on the rear
slope of the roof of the house concerned, but were visible from the public road (as
the house in question was on a corner). In the case of file RF1041, the rooflights
were on the side slope of the roof of the house concerned (a bungalow), but were
also clearly visible from the public road (see photographs on that file).

http://www.pleanala.ie/casenum/RL2284.htm
esterelle
Member
 
Posts: 52
Joined: Sat Nov 01, 2008 10:41 pm

Re: Dormer as Exempt Development?

Postby Tayto » Thu Jul 08, 2010 5:10 pm

esterelle wrote:I wish to clarify a few matters which Tayto addressed earlier and which are utterly false. Firstly the DOE have no day to day role in deciding what is development or not and what is exempted development and what is not. That function has been bestowed on An Bord Pleanala by the Oireachtas..

Local Authorities, under the direction and the guidance of the Minister & the D.O.E., assess development. You mention day-to-day roles- not me.

esterelle wrote:....Secondly no county council in this country regards an attic conversion as an extension, eating into the 40 sq metres allowable under SI 600...

You'd better tell one particular Dublin Co. Council Planning Department then, that they are out of step with the rest of the country, according to you.
I spoke to one of their planners recently-
They regard the increase in floor area brought about by conversion of attic space into habitable accommmodation as development which constitutes a domestic extension, which does in fact eat into the 40m2 extension limit.
eg. a 3-bed semi-d suddenly becomes a 5-bed after a velux-window type attic conversion.
All I'm doing here is reporting Local Authority interpretation of Law.
What am I to believe?
Your statements or the Planning Department?
Or should I advise a client to proceed with a conversion and call on you when Building Control come knocking on the door, or when the development contributions are twice what they should be, because they are calculated on the basis of additional floor area, which includes the attic conversion?
You can quote all the Bord Pleanala cases you like. That's my experience. That's the interpretation I heard. You are adamant. You have total conviction. You take them to court.

esterelle wrote:Internal works to a dwelling house do not require planning permission provided the house remains a single residential unit.

I've already reported a L.A. view above. In any case, a material alteration to a protected building/dwelling house requires permission.

esterelle wrote:I will provide give a more expansive response to Tayto over the weekend when I get an opportunity to dig out the basis for all of the above.

I'm not interested in a list of individual B.P. cases.
Local Authorities, who assess applications and control development, interpret the law in a particular way. I have reported their interpretation as communicated to me. Consequently I will report this interpretation to any client, regardless of your list of B.P. cases, each of which involve a completely individual set of circumstances.
Tayto
Member
 
Posts: 139
Joined: Sat Apr 04, 2009 7:00 pm

Re: Dormer as Exempt Development?

Postby Tayto » Thu Jul 08, 2010 6:24 pm

goneill wrote:I wouldn't rely on my local friendly planning department for guidance because its default postion is that practically everything needs planning even when it patently does not. Many architects are happy to go along with this (and I'm not suggesting you are Tayto), because it avoids the need for them to give hard advice they are willing to stand over, and because it generates fees. In my own case I have twice advised clients that they did not need for permission for development where the LA thought differently. In the first they initiated enforcement proceedings, and reference was made to BP, which decided in our favour. In otherwords, the people who you would seek friendly advice from were wrong. In the second case i sent them DK's article above, explained why I thought it relevant, and they gracefully withdrew. And I don't know why you're being so aggressive. My initial point was that if a development is exempt, why would it have to comply with the development standards of a LA? (as opposed to the Bldg Regs)


Hi goneill,

Fair dues to you with the success in challenging the LA interpretations.
I also acknowledge the relevance and importance of the DK document in your successful challenge to an Enforcement notice.

I agree with you- of course Development Plan standards are irrelevant in the case of exempted development. What I was trying to explain was current LA interpretation of development, much of which is outlined in the Development Plan and the Development Plan is referenced in Planning decisions. And naturally all of these interpretations and decisions can be challenged.

In any case, consultation of the Development Plan is required when considering whether or not the works are exempt. A "normally" exempt development may not be so if located in an architectural conservation area.

Furthermore, a "normally" exempt attic conversion may not be so if the Local Authority considers the conversion to be an extension, and the extension then exceeds the 40m2 limit. In that event, permission would be required. Development Plan standards would apply. Rooflights to habitable areas may not be considered acceptable. Similary, if the proposed attic conversion formed part of a wider planning application, rooflights would not be considered acceptable as a sole means of providing daylight to habitable accommodation.


The initial questioner asked for opinions. I gave mine, with reference to my experience, regulations and LA interpretation.
Why did you and others with an obvious grasp of the relevant legislation:

1. Not even venture a qualified opinion on the described development, despite you experience.
2. Choose instead to wag the finger at my efforts to bring clarity to the issue when I was reporting Local Authority interpretation and highlighting the relevant terminology?

My attitude was more of irritation with this lack of effort from some to produce clarity and coherent direction, particularly given their evident experience and instead resort to finger wagging over a perceived flaw in the approach to the problem.

I don't think it is all that wise to dismiss LA legal interpretation as being relatively predictable and unimportant in the planning and development environment.

In hindsight, to save my own time and energy, I should have said :
" I don't know, It's open to interpretation, you can challenge any LA/BP decision, if you have the time, money, rigorous legal argument, determination and energy to do so. If you don't, make a planning application, or wait until the development is challenged by Building Control or a buyer's solicitor. Then deal with it".

I've also revised some unnecessary comments on a previous post.
Tayto
Member
 
Posts: 139
Joined: Sat Apr 04, 2009 7:00 pm

Re: Dormer as Exempt Development?

Postby Tayto » Thu Jul 08, 2010 6:49 pm

corkblow-in wrote:Well Tayto if it went to court maybe he could call on your brand of sarcasm to wow the judge?

I also don’t know if the dormer is exempt, and it would be foolish of anyone to give an answer without seeing the construction in place and the surrounding area.

What I will say is that the OP was asked for HIS opinion on whether it’s exempt or not. He wasn’t asked to ring the Council for their opinion (he will almost certainly be told it needs planning as they will always take the easy way out), nor was he asked if the client should go to a solicitor – the homeowner could do that without the need for a consultant. If it weren’t difficult we wouldn’t be needed. We’re here to look for solutions to client’s problems using our knowledge of the legislation – in this case starting at the primary and working through to find a justification for his dormer. Maybe consultation with the Council is a part of this – but only a part - they are not providing the opinion.


You introduced the development plan standards to the thread and someone else the building regulations. Neither has a bearing on whether something is exempt or not.


Hi corkblow-in,

Yes, Development Plan standards are irrelevant when the works are exempt.

In assessing whether or not a development is exempt, the site zoning, as indicated in the Development Plan, is relevant. Works, which are "normally" exempt may not be so if the site is located in an architectural conservation area.
Also as I have already described a situation where a "normally" exempt attic conversion may not actually be so if the Local Authority considers the conversion to be an extension, and the extension then exceeds the 40m2 limit. In that event, permission would be required. Development Plan standards would apply. Rooflights to habitable areas may not be considered acceptable. Similary, if the proposed attic conversion formed part of a wider planning application, rooflights would not be considered acceptable as a sole means of providing daylight to habitable accommodation.

I have already descibed the reason for my sarcasm. I have amended some unnecessary comments.
All LA interpretations are open to challenge.

The works as initially described may or may not be exempt.

Any legal challenge to works can in turn be challenged by a rigorous legal argument based on primary legislation.
This challenge may or may not be successful. If you are prepared to wager, statistics favour the Local Authority.

Alternatively, accept the LA interpretation, lodge a valid application, get permission and move on.
Tayto
Member
 
Posts: 139
Joined: Sat Apr 04, 2009 7:00 pm

Re: Dormer as Exempt Development?

Postby esterelle » Thu Jul 08, 2010 7:59 pm

Tayto, for your info. Dublin County Council ceased to exist in 1994. The final decision maker in respect of what is exempt and what is not is Bord Pleanala. There are many different views on everything to do with Development within County Councils but if somebody is accused of carrying out an unauthorised development they can rely on what is established under the Planning Code, specifically Bord Pleanala precedents. Don't believe everything you hear in County Councils. Attic conversions are not extensions and any Council official giving out such information is wrong. But bear in mind that planning application numbers are well down in recent years and perhaps things which are exempted development will require permission in future.There may be a bit of revenue generation going on. We have been ripped off in so many other areas why not this.
esterelle
Member
 
Posts: 52
Joined: Sat Nov 01, 2008 10:41 pm

Re: Dormer as Exempt Development?

Postby DOC » Thu Jul 08, 2010 8:20 pm

esterelle wrote:Tayto, for your info. Dublin County Council ceased to exist in 1994.


Tayto said a Dublin County Council.

My tuppence worth is that I have always taken the habitable area (not necessiarily the entire floor area) of any attic conversion as part of the 40.0m.sq. exemption. Afterall you are extending the habitable area of the house.
DOC
Member
 
Posts: 173
Joined: Wed Nov 10, 2004 12:57 am
Location: Dublin

Re: Dormer as Exempt Development?

Postby esterelle » Thu Jul 08, 2010 9:48 pm

And no one can stop you from doing that if that is what you want to do but my point would be that it is not correct. Dun Laoghaire Borough have a good FAQ on planning exemptions and it is stated there that attic conversions are not reckonable when calculating the area of exempt extensions. After all they (extensions) relate to new areas outside the footprint of the existing house and not to areas within the house which already exist and have residential use. There is serious misinformation being put about by some planning authority officials it seems from this thread and if the DOE were doing what they should be doing they would have an FAQ section on their web site. But I agree that its up to people themselves to challenge Planners and others in the Councils if they try to pull a fast one. If what I hear is correct there are vast numbers of "bone idle" planners in our Councils due to the drop off in planning application numbers. Its to be expected that they would do a little "marketing"
If an attic conversion was reckonable as an extension it would need a planning permission.
It doesn't need permission as there is no change of use involved (see earlier ABP inspectors report) and the works are almost always exempt under Section 4 (1) h of the 2000 Act. The case where the need for a permission might arise is where a dormer window would be required and then permission need only be sought for the dormer, not the attic conversion.
esterelle
Member
 
Posts: 52
Joined: Sat Nov 01, 2008 10:41 pm

Re: Dormer as Exempt Development?

Postby Tayto » Fri Jul 09, 2010 9:39 am

DOC wrote:Tayto said a Dublin County Council.

My tuppence worth is that I have always taken the habitable area (not necessiarily the entire floor area) of any attic conversion as part of the 40.0m.sq. exemption. Afterall you are extending the habitable area of the house.


Fair dues to you DOC,

I've a pain in my head having to provide responses to every misinterpretation.
Thanks for that and I agree with your logical and practical approach.
T.
Tayto
Member
 
Posts: 139
Joined: Sat Apr 04, 2009 7:00 pm

Re: Dormer as Exempt Development?

Postby Tayto » Fri Jul 09, 2010 10:01 am

esterelle wrote:.......... Dun Laoghaire Borough have a good FAQ on planning exemptions and it is stated there that attic conversions are not reckonable when calculating the area of exempt extensions. ...


Yes it's still there-
I can understand now why your view is as it is.

It's a little odd though that the DOE see fit to publish a leaflet on attic conversions and the requirement to comply with the Building regs incl. fire escapes and structural fire protection, yet at the same time not consider the additional floor to be an extension (or should it be a "material alteration"?).
I mean the original permission may, for example, be for a 3-bed semi-d with related private open space provided on the basis of bed spaces/occupants. Then an additional 2 attic bedrooms changes the house into a 5-bedroom semi-d. Theoretically, another ground floor single-storey exempted extension could add another bedroom. Now you have a 6-bedroom semi-d. Twice the size described in the original permission. And all exemted development.

Nope. I think that the addition of a completely new floor of habitable accommodation in the attic has to be regarded as an addition (edited).
Tayto
Member
 
Posts: 139
Joined: Sat Apr 04, 2009 7:00 pm

Re: Dormer as Exempt Development?

Postby corkblow-in » Fri Jul 09, 2010 10:59 am

I hesitate to bring this up.....but by saying the conversion of the attic space of a semi-detached is an extension - then it must be less than 12sq.m as it is an extension above ground level.

To my mind an extension is a construction that increases the envelope of the structure.

And I accept that others will have a different view............ :)

(and thanks for removing that comment earlier Tayto - I've done the same - was a bit narky yesterday - one of those days!)
corkblow-in
Member
 
Posts: 47
Joined: Mon Jan 14, 2008 6:13 pm

Re: Dormer as Exempt Development?

Postby Tayto » Fri Jul 09, 2010 11:23 am

You are right that "extension" is probably the wrong term. The attic conversion could be classed as an "addition" (of habitable accomodation area), or a "material alteration" (resulting in an increase in floor area).
Local authorities will take the view that permission is required particularly as development contributions can be charged the basis of floor area.

No more narkiness from me either.
Tayto
Member
 
Posts: 139
Joined: Sat Apr 04, 2009 7:00 pm

Re: Dormer as Exempt Development?

Postby esterelle » Fri Jul 09, 2010 1:20 pm

The main thing the public should remember is that their local friendly County Council is now severly cash strapped and they will go to any lengths to raise a few bob including giving out mis-information in relation to planning matters. Some private Planning Consultants are quite happy to go along with this as it generates a bit of work for them in these difficult times. One is reminded of the story of the two Senior Barristers in the Tilted Wig having a pint after a long day of argument in the Four Court. As they sank their pint one was overheard saying to the other, you pluck your goose and I'll pluck mine.
Nice bit of rewording and redifining of terminology by Tayto to extricate himself from an impossible position. Pure balderdash of course as you'd expect flying in the face of what is already well established by An Bord Pleanala and indeed by the High Court and Supreme Court.
esterelle
Member
 
Posts: 52
Joined: Sat Nov 01, 2008 10:41 pm

Re: Dormer as Exempt Development?

Postby esterelle » Sat Jul 10, 2010 3:00 pm

The situation is that if a County Council or the Bord Pleanala receive an application from somebody and a dormer window is included as part of an attic conversion it may well be refused on the basis of the dormer being inappropriate for the area. The board or the council are not obliged to point out that the coversion of the attic is exempt under section 4 of the Act. The refusal comes out and this leads people to believe that none of the works involved were exempt. This is why there is a need for further information from the Department by way of booklets, leaflets etc. At least there is one bit of good news. The laws of estoppel have been amended some years ago in a Court case and now someone can carry out those works which would have been exempted development in the first place despite a refusal decision by a Council or the Board. This changed the situation which had stood since the Tallaght Block Company case where the decision made was that in the event of a refusal, no works could be undertaken. What exists now is a much more sensible and reasonable position wherby, a refusal only prevents the carrying out of works which needed permission in the first instance. The case people need to look up is Keeling v Fingal County Council. Not sure if it was High Court or Supreme Court but it was one of the more important planning law cases since the introduction of the 1963 Act.
esterelle
Member
 
Posts: 52
Joined: Sat Nov 01, 2008 10:41 pm

Re: Dormer as Exempt Development?

Postby Tayto » Sat Jul 10, 2010 5:08 pm

esterelle wrote:The situation is that if a County Council or the Bord Pleanala receive an application from somebody and a dormer window is included as part of an attic conversion it may well be refused on the basis of the dormer being inappropriate for the area........

It could also be refused on the basis of it being injurious to residential amenity or for being in contravention of many other Development Plan policies.
It could be because it was part of a protected structure or in an architectural conservation area.
It could contravene the existing planning conditions.
Rooflights could be similarly be refused.

Previous posters on this thread have been dismissive of the relevance of Development Plans when it comes to the exempt or non-exempt status of developments.
Yet in most An Bord Pleanala cases, where the Bord is asked to adjudicate on exempt/non-exempt status, Development Plan policy is referenced in the final ruling.
(The records are available for public viewing on the Bord's website).
This is evidence that Development Plans have a significant influence on the determination of exempt/non-exempt status.
esterelle wrote:....The board or the council are not obliged to point out that the coversion (sic) of the attic is exempt under section 4 of the Act.....

Nowhere in the Act does it state that universally, additional habitable floor area development, provided on a new upper floor level of a house, is exempted development.
Of course the Bord or Council are not obliged to point out exempted status of habitable attic development- that's because it's not in the Act.
(Please also note that "habitable" implies development to a particular standard, including ceiling heights, access, structure and the provision of natural light).
Tell me where I'm wrong here.
If you can't, then the logical thing to do is to accept this situation as the reality and move on.
esterelle wrote:....a refusal only prevents the carrying out of works which needed permission in the first instance.....
The provision of storage area in the attic space is generally considered exempt. The standards for habitable accommodation do not apply.
The provision of habitable accommodation on a new upper floor of a house with it's attendant natural daylight provision, structure and access, is not generally exempt.
This is the verbally communicated view of quite a number of local authority Planning Departments in my own experience, despite what Dun-Laoghaire Rathdown Co. Council has on it's own Planning F.A.Q. page, the only document you have to support your argument.
esterelle wrote:The main thing the public should remember is that their local friendly County Council is now severly cash strapped and they will go to any lengths to raise a few bob including giving out mis-information in relation to planning matters..
That's odd. They are your champions one minute and you're denegrating them the next. Would you ever make your mind up, for God's sake.
esterelle wrote:..........flying in the face of what is already well established by An Bord Pleanala and indeed by the High Court and Supreme Court.

Ahem...cough...cough...em........Why don't you have a look at this particular Co. Council Planning F.A.Q. in relation to attic development:

http://www.waterfordcoco.ie/en/services/planning/faqs/exempteddevelopment/#Do I require planning permission to convert my attic?

I guess that's another Local Authority you'll have to take to court then.
esterelle wrote:.........one was overheard saying to the other, you pluck your goose and I'll pluck mine.....

There are quite a few pluckers around here, that's for sure.
esterelle wrote:.........Pure balderdash of course....

Pardon? Is that some sort of pebbledash?
esterelle wrote:.........Nice bit of rewording and redifining of terminology by Tayto to extricate himself from an impossible position....
.
Hey, Thanks. I'll take that as a compliment.:)
.
Tayto
Member
 
Posts: 139
Joined: Sat Apr 04, 2009 7:00 pm

Re: Dormer as Exempt Development?

Postby esterelle » Sat Jul 10, 2010 5:51 pm

What is in the Act is section 4 (1) h. Improvements to existing structures (nb any structure)
In Cairnuff v O'Connell section 4 (1) g of the 1963 Act was interpreted by the Supreme Court. Section 4 (1) h of the 2000 Act is identically worded.
Works which do not affect the character of the structure are exempted development. Character was defined also in that decision. It is referred to by the ABP Inspector in the 32 Ballinclea Heights referral which I referred to earlier in this thread. Incidentally the structure on Waterloo Road in Ballsbridge, Dublin 4 which was the Court case subject was a protected structure. The Court ruled that the development in question was exempted development.
Councils are cash strapped as I pointed out earlier, its up to the public, their customers, to ensure that they the Councils are not ripping them off. Its easier to avoid being ripped off if you are armed with the facts, all the facts, not just some.
esterelle
Member
 
Posts: 52
Joined: Sat Nov 01, 2008 10:41 pm

Re: Dormer as Exempt Development?

Postby corkblow-in » Sat Jul 10, 2010 6:50 pm

Personally I believe that attic conversions in general are exempt and that the only issue to be considered is how the headroom and daylighting requirements are dealt with. But I do have to pull you up on one point esterelle – 4(1)(h) does not apply to any structure as you state. S.57 relates to protected structures:-

[INDENT]57. —(1) Notwithstanding section 4 (1)(h), the carrying out of works to a protected structure, or a proposed protected structure, shall be exempted development only if those works would not materially affect the character of—
(a) the structure, or
(b) any element of the structure which contributes to its special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest.
[/INDENT]

So the insertion of a stairs or modifications to the interior to comply with building regs (eg improving ceiling fire resistances, new fire doors etc) would more than likely de-exempt the conversion of the attic.
corkblow-in
Member
 
Posts: 47
Joined: Mon Jan 14, 2008 6:13 pm

Re: Dormer as Exempt Development?

Postby esterelle » Sat Jul 10, 2010 11:41 pm

You are correct that the 2000 Planning Act attempted to restrict exempted development in respect of protected structures and that came after the Cairnduff decision in the Waterloo Road case but ABP have done some section 5 references under the new Act and allowed certain things to continue as exempted development. The removal of trees within the curtilage is one obvious one that springs to mind. This was done about two years ago. There are some others which I will dig out at a later stage. There is a clear conflict between S 57 and S 4. Section 4 clearly refers to any structure and one has to rely on ABP reference case decisions to see what's allowable now.
In an existing dwelling (not protected structure) which has planning permission or is pre 1963 there is no question that all internal works are exempted development from a planning point of view and matters relating to insulation, fire doors etc do not have the affect of removing or limiting that planning exemption. This is because in defining or re-defining Section 4 (1) g in the Cairnduff case the only matter which needed to be considered when deciding on the Act based exemption was character. Character was then defined by the Supreme Court as part of the decision and if someone was brought to Court by a County Council for a breach of the planning laws as a result of carrying out internal works, they could rely on the Cairnduff case as a defence. The Law agents in Local Authorities would be well aware of this and this type of case would not be taken. Besides there are no routine inspections caried out on private houses to see whether particular works (such as the installation of second kitchens or the conversion of attics) have been carried out by the owners.
And if you re-read S 57 as I have just done you will see that even in the case of Protected Structures there is scope for exempted development provided the character of the structure is not violated.
esterelle
Member
 
Posts: 52
Joined: Sat Nov 01, 2008 10:41 pm

Re: Dormer as Exempt Development?

Postby esterelle » Sun Jul 11, 2010 10:50 am

The following may address in some way the issue of exempted development and protected structures.
The Supreme Court has indicated in the Cairnduff v O’Connell decision that character must relate to matters such as shape, colour design and ornamental features
of the structures concerned. This would certainly not necessarily rule out much maintenance and upgrading works on protected structures, particularly internal works. There is a belief held by many that current conservation policy in respect of certain buildings is a charter for dereliction. Many people who own these buildings are elderly and do not have enough money to employ the specialists to carry out the sort of works Conservation Officers want. So these buildings are gradually falling into a serious state of disrepair and as their investment value is seriously impaired by virtue of their protected status. They will become derelict as the years go by and that is not in anybody’s interest. So it is vital that reasonable maintenance and is allowed, be it under Section 4 or Section 57 of the Act.
esterelle
Member
 
Posts: 52
Joined: Sat Nov 01, 2008 10:41 pm

Previous

Return to Irish Planning Matters