Dormer as Exempt Development?
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@corkblow-in wrote:
Tayto – I have to agree with goneill
What is in question is first principles – what does the primary legislation say? Is the principle of such development exempt – then you move into development plans, building regulations etc. and put their requirements into practise.
I’m sure we’ve all been in the position (particularly these days) where we’ve applied for permission for an attic conversion – given the client a specification outlining the building regulations to be complied with – and then they’ve gone on their merry way. I’ve no idea have they complied correctly with the regulations and if they are not coming back looking for certs I can’t direct them to do so. On their own head be it.
To yourself and goneill-
The primary legislation takes precedence over secondary legislation.
Ok. I didn’t say it didn’t.Anyway, I’ve tried to answer the initial thread question. I haven’t seen you guys make much of an effort. If you’d bother your arses to try, then you might have to consider how the primary legislation is interpreted. Not by you, but by the folks who make the decisions on individual planning applications and built developments, in Local Authority Planning & Building Control Departments in particular.
If you happen to find youself engaging with them, and if it turns out that they don’t agree with your interpretation of the primary legislation, then you can always bring them to court and dazzle the judiciary with your grasp of precedent and what takes precedent.
I don’t know whether the attic conversion in question requires planning or not, all I’m saying is things are not as black and white as some here would have us believe. If something is clearly exempted then its compliance or otherwise with the development plan is irrelevant. And it doesn’t always serve your client’s interest best to err on the side of caution and seek permission. What if they’re refused, but their next door neighbour goes down the exempted development route successfully? Would you be liable for his failure to obtain permission?
Here is a re-typed copy of the late David Keane’s article which probably contains typos. I know it is 12 years old and refers to an earlier act and that protected structures have been introduced since, but the key paragraph of Section 4 remains in place albeit under a different number.
Irish Architect January 1998 [not March as I stated above]
“Legal Column
Blurring Around the Edges
David Keane
When do you need planning permission? The answer is not as often as you would think and certainly not as often as most planning authorities or, with the greatest of respect an Bord Pleanala thinks. Everyone will know that permission is required for anything that comes under the definition of development and in the 1963 act this definition is very wide indeed. However some things even though they are development, are excluded by being declared exempt and this is dealt with in two separate places, firstly in the Act and secondly in the Regulations.
The regulations are clear enough though we’ll come to that later but the most interesting part of the Act is section 4(1)g which exempts from the Acts “ 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 such appearance inconsistent with the character of the structure or of neighbouring structuresâ€.
Under this subsection, as interpreted by the Supreme Court, the scope for substantial works outside the control of the Planning Acts is very wide. The internal provision is quite simple and provided that the interior is not listed, that the use is not intensified or changed quite literally anything can be done. Obviously any such works would also have to be looked at from the point of view of the building regulations and possibly other legislation but as far as planning is concerned they would be exempt.
The external position is the one however that probably interests architects and developers generally more than the interior requirements and that it is here that the courts have shown a very much more liberal view than virtually all the planning authorities and an Bord Pleanala itself. I haven’t done a headcount but the vast majority of Section 5 references to an Bord Pleanala (which is what the board decides in the case of a dispute whether something is or is not exempt) are decided on the basis that the works are not exempt. The Supreme Court, however, has made a very interesting observation. The dispute arose as to whether the alterations of a house in Waterloo Road in Dublin which consisted of opening a new window in a side wall, replacing a window with the a door and building a balcony with a staircase leading down to a garden was, or was not exempt from the provisions of the Acts. The court held that the alterations were indeed material but the particular subsection requires not only that the alterations be material but that in addition they must render any new appearance inconsistent with the character of the structure itself of neighbouring structures and the court unanimously decided that that this was not the effect of the alterations.
Architects and property owners generally should make much more use of the Court’s decision. It is obviously in sympathy with the provisions of the Constitution where it says that “ the state shall in particular by its laws protect as best it may from unjust attack and in case of injustice done, vindicate the life, the person, good name and property rights of every citizenâ€. I doubt if any Planning Authority or the board would have agreed in advance of the Supreme Court decision that those proposed works were exempt but having the benefit of that particular decision it would surely save an awful lot of work for architects, developers, planning authorities and an Bord Pleanala if this subsection of the act was used in the way that the Court obviously feels views it should be. So go and materially affect the external appearance of your building but don’t render it inconsistent with itself (although I’m not sure how this can be done) or of other buildings nearby.
The other part that comes to my mind when thinking about exempted development is the leading building legislation generally agreed vocabulary. Building types and uses are defined in a wide variety of documents ranging from the Planning Acts themselves, the Planning Regulations, the Building Control Acts and Building Regulations and also in the vast majority of Development Plans prepared by planning aothorities. It would save a very considerable amount of time and money if a statutory list of definitions was produced. A good example of the problem that occurs was a recent reference to an Bord Pleanala and aas to whether a glazed extension to the rear of a house was or was not exempted development particularly in regard to the provision that limit such extensions to 23 sq m The position was that if the glazed structure was a greenhouse it was exempt but if it was a conservatory it was not exempt. Does anyone body know what the difference is? Does being attached to the building make a vital difference or does the possibility of habitation come into play? It would seem almost a matter of tossing a coin and is an extremely subjective decision. The Board, following the tendency to widen more and more of the scope of the controls decided that it was not exempt.
So, go make use of the Cairnduff case and lighten the load on the Planning Authorities.
Cairduff v O’Connell {1986} ILRM 465
Article 40.2 The Constitution
An Bord Pleanala Reference 06D. RF 0800″@goneill wrote:
I don’t know whether the attic conversion in question requires planning or not,
Ok
@goneill wrote:….all I’m saying is things are not as black and white as some here would have us believe. If something is clearly exempted then its compliance or otherwise with the development plan is irrelevant.
That’s true.
@goneill wrote:
….And it doesn’t always serve your client’s interest best to err on the side of caution and seek permission. What if they’re refused, but their next door neighbour goes down the exempted development route successfully? Would you be liable for his failure to obtain permission?
Well you could ask them to post the question on https://archiseek.com.
Or refer the client to a solicitor. Or what about maybe even lifting a telephone and asking your friendly Local Authority Planning Dept. for guidance? Or investigate local precedent yourself? Or make a judgement based upon experience of how the Authorities interpret Development?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.
Secondly no county council in this country regards an attic conversion as an extension, eating into the 40 sq metres allowable under SI 600.
Internal works to a dwelling house do not require planning permission provided the house remains a single residential unit.
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 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.
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)
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).@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.@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.
@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, 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 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.
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.@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.@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).
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!)
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.
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.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 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:
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.:)
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