Exemp development.

Exemp development.

Postby john242 » Mon Jul 26, 2010 2:23 pm

Hello,
I am looking at purchasing a property in which a small side extension has been constructed without planning permission. The sellers claim it doesn't require planning permission and is covered under exempt development but have not applied for a declaration from the council.
My understanding is that only development to the rear of the property can be allowed under this regulation. Can you confirm or deny this and can you give some advice on what need to be done to fix the problem. Many thanks
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Re: Exemp development.

Postby DOC » Mon Jul 26, 2010 2:45 pm

Would need some more details/information but generally your understanding is correct, i.e. an exempt development must be to the rear of the house.

However, where some confusion may arise is that you are allowed, under the same regulations, to convert a garage to habitable accommodation to the side of a house. You are also allowed to build a garage, up to 25.0m.sq. to the side of a house so theoretically you can build your garage as an exempt development and then convert it to habitable accommodation. Another planning grey area!

Best thing, as you suggest, is get a declaration.
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Re: Exemp development.

Postby henno » Mon Jul 26, 2010 4:51 pm

solicitors will accept a 'certificate of exemption' from a private professional.
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Re: Exemp development.

Postby john242 » Mon Jul 26, 2010 5:09 pm

Thanks for your replies. It is possible it was built as a garage attached to the side of the property and then converted. it is approx 20 sq m in plan area. Could you point me in the direction of the legislation which covers this and maybe explain a but more what a certificate of exemption from a private professional would consist of?
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Re: Exemp development.

Postby henno » Mon Jul 26, 2010 5:25 pm

john242 wrote:Thanks for your replies. It is possible it was built as a garage attached to the side of the property and then converted. it is approx 20 sq m in plan area. Could you point me in the direction of the legislation which covers this and maybe explain a but more what a certificate of exemption from a private professional would consist of?


[url=http://www.irishstatutebook.ie/2001/en/si/0600.html#sched2]relevant legislation
[/URL]

a cert of exemption can be done by a professional, usually architect or engineer. with relebvant PI insurance, which will state that the works are exempt from planning.... which is in turn accepted by the purchasers solicitor.

This usually happens anyway, where there is work done which is exempt and teh property is being sold.
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Re: Exemp development.

Postby DOC » Thu Aug 05, 2010 9:25 am

Quick exempt development question:

Existing two storey, semi-detached house. Over the years, the follwoing was added (by grant of planning permission) - a porch to the front (4m.sq.), a garage to the side (40m.sq.) and a single storey extension to the rear (17m.sq.).

I am now looking at converting 14m.sq. of the existing garage to habitable acommodation (i.e. extending the existing house into the existing garage). There will be no changes of alterations to the front elevations, as the proposed 'extension' would be within the existing structure (to the rear).

Any opinions on whether this extension into the garage would be consdiered exempt or why it might not be? I am considering going for a declaration on this.
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Re: Exemp development.

Postby corkblow-in » Thu Aug 05, 2010 11:28 am

Seems to me to be exempted development once you comply with the conditions:

Planning & Development Regulations 2001, Schedule 2, Part 1, Exempted development - General

CLASS 1
The extension of a house, by the
construction or erection of an extension
(including a conservatory) to the rear of
the house or by the conversion for use as
part of the house of any garage, store,
shed or other similar structure attached to
the rear or to the side of the house.
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Re: Exemp development.

Postby DOC » Thu Aug 05, 2010 12:34 pm

Thanks corkblow-in. Yes, I think it's exempt.
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Re: Exemp development.

Postby esterelle » Mon Aug 09, 2010 9:05 pm

Here is a question for all Exempted Development wizards. If one gets permission for a Dwelling with an attached garage to side or rear we all accept that its possible to build a shed in your rear garden up to 25 sq metres. However the question is this: if you get permission for a detached garage to side or rear as part of your original permission are you de-exempted by reference to your 25 sq metre shed to the rear?
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Re: Exemp development.

Postby esterelle » Mon Aug 09, 2010 9:12 pm

DOC, your extension into the garage is not Exempted Development as you have already exceeded the 40 sq metres allowable. This figure includes extensions which have received Planning Permission. No point even considering submitting a Section 5 Declaration request. It is made clear in the Regs (SI 600) that the 40 sq metres includes areas which have received permission. Cruel, I know.
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Re: Exemp development.

Postby DOC » Mon Aug 09, 2010 10:34 pm

Thanks Esterelle. I still think it's not necessarily black and white?

Maybe I am totally wrong but if you take Class 1 of the exempted devleopment regulations on its own and apply it to this case - the area of 'habitable' extensions built to date to the rear of the existing house is 17 m.sq. (it's somewhat irrelevant that this extension has palnning). O.k., the garage to the side dores exceed 25 m.sq. (but has permission). We are now looking to make 14 m.sq. of that existing 'non-habitable' garage 'habitable', bringing the total 'habiatble' area added to the original house only to 31 m.sq. or 35 m.sq. if you consdier the porch habitable (i.e. in total less than 40 m.sq.). Therefore I still think it may be exempt?

I don't think the fact that the existing garage is bigger than 25 m.sq. is relevant in this case? As I said, I may be mad!!!

I am too confused now to answer your question!
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Re: Exemp development.

Postby corkblow-in » Mon Aug 09, 2010 11:05 pm

No DOC you're not mad......it is a bit grey.

You are not actually constructing any new floor area so can you be said to be constructing an extension? I don't think so.

If anything its a change of use - but then the garage was used as a domestic store ancillary to the main house so it doesn't seem right that your client would have to apply to use part of his dwelling in a different manner. I always considered it wrong that the regs include extensions and conversions in the same class - one involves adding new floor area, one doesn't.

Confused now too......I'll have to read up a bit more methinks.
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Re: Exemp development.

Postby corkblow-in » Mon Aug 09, 2010 11:11 pm

esterelle wrote:Here is a question for all Exempted Development wizards. If one gets permission for a Dwelling with an attached garage to side or rear we all accept that its possible to build a shed in your rear garden up to 25 sq metres. However the question is this: if you get permission for a detached garage to side or rear as part of your original permission are you de-exempted by reference to your 25 sq metre shed to the rear?


Good one estrelle! :)

My opinion would be that you are still permitted to erect a 25sq m shed to the rear in that case. The regs as I understand it are there to prevent a dwelling growing to oversized proportions by the addition of a series of 'exempted' extensions. If you have received permission day 1 for a house with detached garage I believe your exempted development rights still stand. Where the local authority want to limit you they often put a condition to the effect that no exempted developments can be permitted. Theres a question whether they can do that - but to my knowledge no-one has challenged it yet.
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Re: Exemp development.

Postby DOC » Mon Aug 09, 2010 11:14 pm

Thanks corkblow-in. You're right in what you say, the garage is ancillary to the use of the house but I would consider what I am proposing an 'extension' to the existing house as it is proposed to extend the 'habitable' or living accomodation of the house.

I suppose this is what Section 5 is for - to clarify these sort of issues. :)
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Re: Exemp development.

Postby corkblow-in » Mon Aug 09, 2010 11:51 pm

Section 4(1) of the act:

(h) development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures;

(j) development consisting of the use of any structure or other land within the curtilage of a house for any purpose incidental to the enjoyment of the house as such;


I know Keane felt that not enough use was made of section 4(1)(h) in that the courts have previously ruled major alterations exempt on the basis that the dwelling was not inconsistent with the character of the structure or of neighbouring structures

I'd feel happy that its exempt - but then its easy for me to say when its not my PI insurance! :)
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Re: Exemp development.

Postby DOC » Tue Aug 10, 2010 6:38 am

Something else to throw into the mix! I think now I've answered my own question re: whether planning permission is required or not (in my own situation).

Class 50(b) of the exempt development regulations states the follwoing is exempt: ‘The demolition of part of a habitable house in connection with the provision of an extension or porch in accordance with class 1 or 7, respectively, of this Part of this Schedule or in accordance with a permission for an extension or porch under the Act.’

However in 2008 (SI 256 of 2008), this was qualified and the following was added: 'No such building or buildings shall abut on another building in separate ownership.’

This qualification is actually little known and I know of a couple of people who have been caught out on this!

In my own case, with regard to the existing single storey extension to the rear (that was granted planning), this abuts the party wall and is joined to a similar extension to the rear of the neighbours house. As part of the proposed works, re: my original query, we need to take off the pitched roof of the existing extension and replace it with a flat roof and take down the rear wall of the existing extension and re-build a new rear wall (so in effect demolish the existing structure), so Class 50(b) probably applies.

The reason for changing the existing roof is that it is a slate roof at a pitch of about 12 degress and simply does not work (it leaks) - but as changing to a flat roof would change the external appearance, I don't think 4(1)(h) applies.

With the revsied Class 50(b), you will see more planning applications now 'for the demolition of existing structure to facilitate the construction of an exempt development', i.e. an application for planning just for the demolition of an existing structure.
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Re: Exemp development.

Postby corkblow-in » Tue Aug 10, 2010 11:28 am

Thats sorted then DOC - maybe now you'll be able to get some sleep :)
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Re: Exemp development.

Postby esterelle » Tue Aug 10, 2010 6:52 pm

I must have had a tad too much sherry last night when I suggested that DOC's 14 sq metre conversion of part of his approved garage to the side might need permission. It most definitely does not need permission under the regs (SI 600) As long as the total converted area plus all previously approved habitable extensions and exempt habitable extensions come to a total which is 40 sq metres or less then you are four square within the regs. Garages, sheds etc are in a different exemption Class to habitable extensions.
25 sq Metres is the maximum for those except in the case of a Garage or Shed which was approved with the original permission for the dwelling. In the case of these whether detached or not you are I believe entitled to avail of the normal exemptions in the Regs.
It is a bit obscure but it is worded something like additions to the dwelling or something like that. But DOC all you need to do is to write to the Planning Officer in your local Council and say what you are proposing to do and why it is exempt. If there is a problem you will have a speedy answer back. Keep a copy of your letter or course for the record.
Sorry again for the bum steer.
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Re: Exemp development.

Postby esterelle » Tue Aug 10, 2010 7:14 pm

For the avoidance of doubt in the case of existing garages / sheds etc built as part of the approved dwelling, I will endeavour to explain why the regulations allow you to have an additional 25 sq metres.

Class 3 states : The construction, erection or placing within the curtilage of a house of any tent, awning, shade or other object, greenhouse, garage, store, shed or other similar structure.

and the relevant Condition / Limitation says

The total area of such structures constructed, erected or placed within the curtilage of a house shall not, taken together with any other such structures previously constructed, erected or placed within the said curtilage, exceed 25 square metres.

I would suggest that the Curtilage of a new dwelling is only formed when both the dwelling and any other structures approved with it are completed. So Class 3 is then permitting as exempted development a tent, garage, store, shed etc within the Curtilage of the Dwelling (including whatever was approved with it) provided that the floor area of the tent, garage, store, shed etc does not exceed 25 sq metres.

Curtilage is a fairly obscure legal concept but I think it is helpful here to clarify one of the most difficult areas of the Regulations.
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Re: Exemp development.

Postby onq » Wed Aug 11, 2010 1:14 am

I used to think this section of the regulations was pretty clear.
You are allowed 40 sq.m. of habitable space under the exempted development schedule.

Unless its a converted Garage originally built to the side of the house, this space cannot be to the side, unless the projection is marginal, and the local authority gives you a section 5 declaration in favour of this.

This does not include attic conversions [in Dun Laoahghaire-Rathdown at least] or front porches but does include previous extensions to the orignial base plan of the house, both with and without permission, both authorised and unauthorised.

You are allowed to build a shed for non-habitable use up to 25 sq.m.
The only grey area centres on what is "ancillary to the use of the dwelling".

SI 256 of 2008 clarifies the issue of curtilege as well as the status of "abutting".
If you demolish something that forms of a boundary, part of it will be on the other person's land and so not within the curtilege of the dwelling.
Similarly building a wall that straddles the boundary appear to require both parties to exercise their rights to build together to remain within the terms of the exempted developmetn schedule

Curtilege is taken to mean the legal boundary and the rights pertaining to boundaries have been significantly affected/clarified/eroded by the Land Conveyancing Law Reform Act 2009.
[I think you were the one who first brought this to my attention Doc, although you didn't answer my query as to where you first heard about it]
Curtilege is not formed by adding structures to a site - it constitutes the site entire to its legal boundary IMO and it is therefore "the thing" that the structures may be built within.

FWIW

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Re: Exemp development.

Postby DOC » Wed Aug 11, 2010 6:34 am

onq wrote:I think you were the one who first brought this to my attention Doc, although you didn't answer my query as to where you first heard about it.


I did a Section 5 Declaration last year for a job that I completed a couple of years ago. The client was having 'issues' with their neighbours. To back up my opinion on compliance that my clients extension was exempt, I said I would get them the a Section 5Declaration.

I was 100% sure the extension as built was exempt - to my horror the Declaration was refused - Dublin City Council stated that the development would require planning permission alone on the basis of SI 256 of 2008, as we had demolished a former extension and return to facilitate construction of the new extension. Basically the extension was exempt but the demolition of old extension/return, as it abutted 'on another building in separate ownership' was not.

Luckily the extension was completed in 2007, so we applied again for a Section 5 Declaration, confirming the extension was completed in 2007 (by statutory declaration, etc.) and Dublin City Council granted the Declaration on the basis of legislation that was pertaining prior to the introduction of SI 256 of 2008.

Since finding this out, I can foresee lots of issues for people with this little addition to the exempt development regulations!
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Re: Exemp development.

Postby esterelle » Wed Aug 11, 2010 3:09 pm

You are correct DOC that there were additional regulations introduced which outlawed the demolition of certain non-habitable structures. It seems a bit daft but you were fortunate that Planning Legislation cannot operate retrospectively. Demolition of habitable structures has been outlawed for quite a while but you can demolish an old house by stealth and stay within the regulations. One wall at a time, taken out and replaced by new construction. Its expensive of course but perhaps worth it if you have really bad walls.
Interesting that the Council you were dealing with got it wrong and had to issue a revised declaration. Councils get quite a lot wrong continuously and have different interpretations on many matters. Planning should be much simpler to understand for the public. Unfortunately there are certain gurus in the Councils who wish to control things and look after those they like if you get my drift.
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Re: Exemp development.

Postby onq » Wed Aug 11, 2010 8:00 pm

DOC wrote:I did a Section 5 Declaration last year for a job that I completed a couple of years ago. The client was having 'issues' with their neighbours. To back up my opinion on compliance that my clients extension was exempt, I said I would get them the a Section 5Declaration.

I was 100% sure the extension as built was exempt - to my horror the Declaration was refused - Dublin City Council stated that the development would require planning permission alone on the basis of SI 256 of 2008, as we had demolished a former extension and return to facilitate construction of the new extension. Basically the extension was exempt but the demolition of old extension/return, as it abutted 'on another building in separate ownership' was not.

Luckily the extension was completed in 2007, so we applied again for a Section 5 Declaration, confirming the extension was completed in 2007 (by statutory declaration, etc.) and Dublin City Council granted the Declaration on the basis of legislation that was pertaining prior to the introduction of SI 256 of 2008.

Since finding this out, I can foresee lots of issues for people with this little addition to the exempt development regulations!


Thanks for clarifying that - and isn't that a frightener, .

I suspect that these unannounced changes to planning law have caught many people out over the years.

That particular piece of legislation has already caused significant upset in the Dun Laoghaire area.

Ref: Cuffes upsetting of the LA apple cart on the Carlisle pier demolition beign not exempted.

http://www.ciarancuffe.ie/cuffe-welcomes-bord-pleanala-decision-carlisle-pier

Its one reason why I frequent these forums [+ AAM and to a lesser extent Boards.ie].

You simply cannot beat current [or recent, at least] knowledge.

Just as well you were clued in enough to spot the direction the LA looked at plannign law.

That is to say, they were looking forward, assuming perhaps you were about to do it, rather than backwards, where you had gotten in under the guillotine.

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Re: Exemp development.

Postby onq » Wed Aug 11, 2010 8:10 pm

esterelle wrote:You are correct DOC that there were additional regulations introduced which outlawed the demolition of certain non-habitable structures. It seems a bit daft but you were fortunate that Planning Legislation cannot operate retrospectively. Demolition of habitable structures has been outlawed for quite a while but you can demolish an old house by stealth and stay within the regulations. One wall at a time, taken out and replaced by new construction. Its expensive of course but perhaps worth it if you have really bad walls.
Interesting that the Council you were dealing with got it wrong and had to issue a revised declaration. Councils get quite a lot wrong continuously and have different interpretations on many matters. Planning should be much simpler to understand for the public. Unfortunately there are certain gurus in the Councils who wish to control things and look after those they like if you get my drift.


There's drift, and then there's fact.
We were moithered by a drainage dept two years ago or so - after some flooding two miles away - when we applied for a rear extension.
This is in an urban area not prone to flooding, where a flash flood had occurred through some freak weather conditinos following a period of prolongued rain.
We had to submit AI to show the lowest part of our extension, which stepped down with the land to and existing outbuilding, was higher than the invert of the road stormwater gully out side the entrance of the house.

We were fine, as it happened although it took several phone calls to determine exactly what the local authority wanted us to show, the language being a little ambiguous and the road itself haveign a health fall as it went last the house, making flood run off highly unlikely, although not impossible. All well and good you mihgt think - sound policies.
Imagine my surprise when the local authority turned a blind eye to a the development of a basement without permission. Admittedly it was several miles away from the site of the flooding, but then so was the house extension site. It seemed wholly inconsistent and I ran my concerns all the way up to senior planning level but without too much satisfaction.

Quelle surprise.

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Re: Exemp development.

Postby esterelle » Thu Aug 12, 2010 8:29 am

Just to return to Curtilage and what it means. It is much more than simply the legal boundaries of a site or dwelling. If it were not the term would not be relevant at all. It also relates to the space within the site boundaries and for this reason the curtilage of a site with no building on it is quite different from the same site with an approved dwelling / garage. It is very much a legal concept and it is obviously of great relevance in respect of the exemption classes of the planning and development regulations where it is quoted within a number of Classes.
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