England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th December 2014

NEIL CAMERON QC :

Introduction

1. This is an application for an order pursuant to section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash a decision of 1^st April 2014 of an inspector appointed by the Secretary of State for Communities and Local Government. By that decision, the inspector dismissed the Claimant's appeals against decisions by the Second Defendant, Aylesbury Vale District Council ("the Council") to refuse to grant planning permission ("Appeal A") and to refuse to grant a lawful development certificate ("Appeal B"). There is no challenge to the inspector's decision on Appeal B.
2. The Claimant relies upon two grounds of claim. In both grounds the Claimant contends the inspector erred in law in his interpretation of the provisions of the Town and Country Planning (General Permitted Development) Order 1995 ("the GPDO").

i) Under ground 1 it is contended that the inspector misinterpreted paragraph A.2(c) of Class A of Part 1 of Schedule 2.

ii) Under ground 2 it is contended that the inspector misinterpreted Article 3(5).

The Background Facts

3. The Claimant is the owner of a property known as Coppice Cottage, Ringshall Road, Berkhamsted, Hertfordshire ("the Property"). The Property consists of a detached dwelling together with a U shaped range of outbuildings set in substantial grounds to the north of the village of Ringshall. The Property lies within an area of outstanding natural beauty ("AONB") and within the Metropolitan Green Belt. As the Property lies within an AONB it is on Article 1(5) land for the purposes of the GPDO.
4. The Claimant carried out works to extend the rear of the Property at ground and first floor levels. Following the carrying out those works the Claimant, on 18^th October 2011 made an application for retrospective planning permission for part two storey, part single storey side and rear extensions. The planning application was refused by the Council by a decision notice dated 18^th May 2012. The Claimant appealed to the First Defendant. The First Defendant appointed an inspector (Mr. David Fitzsimon) to determine the appeal. The appeal was conducted by way of the written representations procedure. By a decision letter dated 21^st August 2012, the inspector dismissed the appeal. The inspector's decision was quashed by an order of the High Court dated 24^th June 2013, and remitted to the First Defendant for reconsideration. Mr Fitzsimon's decision was quashed by consent on the ground that he ought to have considered whether the Claimant's proposed development benefitted from permitted development rights and that his failure to do so rendered the decision unlawful.
5. The First Defendant appointed a different inspector (Mr. R. Evans) to determine the planning appeal under section 78 of the 1990 Act which had been remitted to the First Defendant for reconsideration, and also to determine an appeal pursuant to section 195 of the 1990 Act against the Council's refusal to grant a lawful development certificate in respect of a proposed extension to the front of the Property.
6. Mr R. Evans conducted a hearing on 4^th February 2014 and made a site visit on 5^th February 2014.
7. The Claimant argued that the extension, or most of it, benefited from permitted development rights. In the event that the extension was held not to have been granted planning permission by virtue of the fact that it was permitted development, the Claimant argued that the extent of development granted permission as permitted development was a 'fall back' and therefore a material consideration to be taken into account when determining whether to grant planning permission. The Claimant's argument, is set out in a document entitled "Further Representations Following an Appeal Under Section 288 of the Town and Country Planning Act 1990" which included the following:

"4. The Appellant has constructed a first floor rear extension which does not extend beyond what was believed to be the original single storey lean to and a single storey extension of 4m depth from the outer wall of the lean to. There is no first floor extension above this 4m extension and the LPA has acknowledged that these works were carried out in good faith being permitted development …

……..

6. …………….On land within an AONB, the enlarged part of the dwelling house may, if it is only one storey, extend up to 4m beyond the wall of the "original" dwelling house and may be up to 4m in height. The "enlarged part" which is 4m in depth is only a single storey extension extending from the rear wall of the original lean to and therefore is permitted development. It does not have a floor above it and so cannot be considered to be a two storey extension – see attached correspondence with the Council and the planning lawyer's advice given to Council (Doc 3).

7. With regard to the first floor extension, this is directly above the original lean to and does not extend beyond the rear wall of the original lean to as outlined in the red line drawing. Article 2(c) of the Schedule 2 to the Town and Country Planning General Permitted Development Order 1995 (sic) provides that an enlargement of more than one storey should not extend beyond the rear wall of the "original dwellinghouse" and therefore is permitted development. ……………….

…………….

10. The Appellant submits, for the reasons set out at paragraphs 7-9 above, that the extension which has been constructed benefits from Permitted Development rights or alternatively that the majority of the development benefits from permitted development rights and that what has been constructed is not materially different from that which would be designated as permitted development and therefore planning permission should be granted.

11. In addition to the rear Permitted Development rights, the property also benefits from Permitted Development rights which allow the Appellant to construct a substantial two storey extension to the front of the property, as shown at Doc 7. ………………..

13. If planning permission is granted for the extension which has been constructed the Appellant would be prepared to forego his right to exercise his permitted development rights to the front of the building. ……………..

…………….

15. In addition the Appellant submits that the planning permission should be granted as what has been constructed is significantly more appropriate to the Green Belt than what he could construct to the front and rear of the property under permitted development rights which is the fall back position.

……………."

8. The Council's argument before the inspector (as set out in a document entitled "Fall back regarding rear extensions") was that for the purposes of the limitation imposed by paragraph A.2(c) of Class A of Part 1 of Schedule 2 to the GPDO, when considering an extension at first floor level, the rear wall of the original dwelling house from which a measurement is to be taken is the first floor rear wall. As a result the Council contended that on Article 1(5) land paragraph A.2(c) prevents all rear extensions of more than one storey.

The Inspector's Decision

9. The inspector's decision was set out in a decision letter dated 1^st April 2014.
10. The decision letter included the following:

5. The previous Inspector's decision was set aside by consent on the basis that he

"ought to have considered whether the Claimant's proposed development benefitted from permitted development rights and failure to do so rendered the decision unlawful." It was however accepted that not all of the works shown in the above plans could be permitted development, whether under Class A,

Part 1, Schedule 2 of the Town and Country Planning (General Permitted Development) 1995 (as amended) ["the GPDO"] or otherwise. The works carried out to date, at least to the house, are indisputably part of a single building project. As a preliminary issue therefore, it is necessary to determine not how much of the full proposal amounts to permitted development, but rather, the extent of any permitted development rights available before the works began, having regard to the relevant provisions of Class A. Put another way, those rights would constitute the 'fallback' position, meaning what the Appellant would have been able to do lawfully without having to seek permission and strictly, what would thus be lawful with any unlawfully erected extensions removed.

6. The Department for Communities and Local Government issued Technical Guidance ["the TG"] on the permitted development provisions in August 2010, revised most recently in October 2013. In applying those provisions, the first question is not 'what did parliament intend as restrictions?' but 'what do the relevant parts of the GPDO say and what do they mean?' The meaning of any particular provision is ultimately a matter for the courts. The TG is not a statement of policy where a planning judgment is involved. It is rather the Secretary of State's interpretation and application of a statutory instrument, certainly overseen and approved by Parliament but itself originating from his own department. Comfortably or not, as I stand in his shoes when determining an appeal, his interpretation of the provisions necessarily carries the highest possible weight in the absence of any contrary finding by the courts (or unless that interpretation is so plainly wrong that no reasonable tribunal could agree with it).

7. Turning to the provisions themselves, Class A grants permission for the "enlargement, improvement or other alteration of a dwellinghouse" subject to the exclusions at paragraph A.1. There is no dispute that the house lies within the Chilterns Area of Outstanding Natural Beauty ("the AONB") so that the exclusions at paragraph A.2 also apply. Thus, no permission is granted if "the enlarged part of the dwellinghouse would extend beyond a wall forming a side elevation of the original dwellinghouse" (A.2(b)) or if "the enlarged part of the dwellinghouse would have more than one storey and extend beyond the rear wall of the original dwellinghouse" (A.2(c)).

8. The 'original dwellinghouse' for this purpose means the house as it existed on 1 July 1948 if built before then, as is agreed to be the case here. ……………………………….

16. The TG is equally unequivocal on the effect of paragraph A.2(c), stating that "an extension from a rear wall is not permitted development if it results in an enlarged area of the house that has more than one storey." Advice on the Planning Portal is even blunter: "on designated land, no permitted development for rear extensions of more than one storey³." While an argument might be made for a different, perhaps simpler, wording in the provision itself, that does not prevent it having the meaning described in the TG and it follows the pattern of the equivalent provision (paragraph A.1(f)) for non-designated land.

In passing, the provision does not exclude all extensions above ground floor level, only those extending from a rear wall.

17. Further, there is no reason why the logic of the guidance in relation to vertically stepped rear walls under paragraph A.1(e) should not be equally applicable to the interpretation of "the rear wall" under A.1(f) and A.2(c) for horizontally stepped walls. Thus it does not mean "the (section of) wall furthest from the front" but rather each (section of) wall at the rear from which the extension is intended to project. As the TG states, the term "more than one storey" might comprise the addition of a storey onto an existing part of the house. Measurement of the extension beyond the rear wall should be made from the base of the rear wall of the original house that the enlargement extends beyond. Were this extension being considered against paragraph A.1(f), that wall would be the former or inner main wall, not the outer wall of the lean-to. The same principle applies however so that paragraph A.2(c) excludes any first floor rear extension from Class A.

18. Guidance documents cannot be expected to give examples covering every eventuality but I can find no good reason to apply any other meaning to paragraph A.2(c) than that given in the TG. Whatever the depth of the lean-to, the extension at first floor level was built out from the (first floor) rear wall and results in the enlarged part of the dwellinghouse having more than one storey.

It is thus not permitted development. That leads to the conclusion that the only form of (rear) extension permitted in this instance would have been one of single storey and no more than 4m in depth and height, pursuant to paragraph A.1(e). I have already concluded on the question of the position of the original rear wall (at ground floor level) from where the 4m measurement should be taken. It follows that even by itself, the ground floor extension would exceed the GPDO provisions. I address other 'fallback' possibilities below.

30. Such an extension would certainly impinge on the openness of the Green Belt, though its limited width would mitigate its visual impact and the design would give it at least partly the appearance of an outbuilding or stables, as the Appellant suggests. In that respect it is only the development certified that could be lawfully erected, given the operation of Article 3(5). I accept that the Appellant might go ahead with it but cannot be certain of that. What this amounts to however is the exploitation of the Council's error, albeit one only now appreciated, in order to obtain permission for an unlawfully erected and inappropriate development in the Green Belt. Put another way, the 'threat' can only be made because of that error.

……………….

35. Though not part of the Council's initial refusal, I accept their more recent submission that the extension cannot now be lawful because of Article 3(5) of the GPDO. This provides that the permission granted by Schedule 2 shall not apply if "in the case of permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful." The "existing building" means as at the date of the application, so including the recent if uncompleted extensions. The definition of a "building" under Article 1 (and under section 336 of the 1990 Act) for this purpose includes part of a building. The rear and side extensions described above have been constructed unlawfully for the reasons given above. It follows that no permission is granted under Schedule 2 at the present time.

Footnote 3 to the decision letter : For the record, I do not know when that advice was first published."

11. Paragraph 35 of the decision letter falls under the heading of Appeal B, however it is relied upon by the Claimant on ground 2.
12. The Technical Guidance referred to in the decision letter is The Department for Communities and Local Government: Permitted development for householders Technical Guidance. This guidance is updated from time to time. The inspector referred to the October 2013 version. The court was provided with a copy of the April 2014 version. Both counsel indicated that the April 2014 version of the Technical Guidance contained no changes from the October 2013 version material to the matters before the court.

The Legal Framework

13. Section 58 of the 1990 Act provides that planning permission may be granted in a number of different ways, including by development order and on application to the local planning authority.
14. Section 59 of the 1990 Act provides:

"59.— Development orders: general.

(1) The Secretary of State shall by order (in this Act referred to as a "development order") provide for the granting of planning permission.

(2) A development order may either—

(a) itself grant planning permission for development specified in the order or for development of any class specified; or

………………………"

15. Section 60(1) of the 1990 Act provides:

"60.— Permission granted by development order.

(1) Planning permission granted by a development order may be granted either unconditionally or subject to such conditions or limitations as may be specified in the order."

16. The Town and Country Planning (General Permitted Development) Order 1995 ("The GPDO") was made to pursuant to the powers conferred on the Secretary of State by the 1990 Act.

i) Article 3 provides:

"Permitted development

(1) Subject to the provisions of this Order and regulations 60 to 63 of the Conservation (Natural Habitats, &c.) Regulations 1994 (general development orders), planning permission is hereby granted for the classes of development described as permitted development in Schedule 2.

(2) Any permission granted by paragraph (1) is subject to any relevant exception, limitation or condition specified in Schedule 2.

(3) References in the following provisions of this Order to permission granted by Schedule 2 or by any Part, Class or paragraph of that Schedule are references to the permission granted by this article in relation to development described in that Schedule or that provision of that Schedule.

(4) Nothing in this Order permits development contrary to any condition imposed by any planning permission granted or deemed to be granted under Part III of the Act otherwise than by this Order.

(5) The permission granted by Schedule 2 shall not apply if—

(a) in the case of permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful;

(b) in the case of permission granted in connection with an existing use, that use is unlawful.

……………………………."

ii) Class A of Part 1 of Schedule 2 provides, so far as relevant:

"Part 1 DEVELOPMENT WITHIN THE CURTILAGE OF A DWELLINGHOUSE

(ClassA)

Permitted development

A.

The enlargement, improvement or other alteration of a dwellinghouse.

Development not permitted

A.1

Development is not permitted by Class A if—

(za) ……..;

(a) ………;

(d) the enlarged part of the dwellinghouse would extend beyond a wall which—

(i) fronts a highway, and

(ii) forms either the principal elevation or a side elevation of the original dwellinghouse;

(e) [subject to paragraph (ea), ] the enlarged part of the dwellinghouse would have a single storey and—

(i) extend beyond the rear wall of the original dwellinghouse by more than 4 metres in the case of a detached dwellinghouse, or 3 metres in the case of any other dwellinghouse, or

(ii) exceed 4 metres in height;

(ea) until 30th May 2016, for a dwellinghouse not on article 1(5) land nor on a site of special scientific interest, the enlarged part of the dwellinghouse would have a single storey and—

(i) extend beyond the rear wall of the original dwellinghouse by more than 8 metres in the case of a detached dwellinghouse, or 6 metres in the case of any other dwellinghouse, or

(ii) exceed 4 metres in height;

(f) the enlarged part of the dwellinghouse would have more than one storey and—

(i) extend beyond the rear wall of the original dwellinghouse by more than 3 metres, or

(ii) be within 7 metres of any boundary of the curtilage of the dwellinghouse opposite the rear wall of the dwellinghouse;

(g) the enlarged part of the dwellinghouse would be within 2 metres of the boundary of the curtilage of the dwellinghouse, and the height of the eaves of the enlarged part would exceed 3 metres;

(h) the enlarged part of the dwellinghouse would extend beyond a wall forming a side elevation of the original dwellinghouse, and would—

(i) exceed 4 metres in height,

(ii) have more than one storey, or

(iii) have a width greater than half the width of the original dwellinghouse; or

(i) it would consist of or include—

(i) ………

(iv) an alteration to any part of the roof of the dwellinghouse.

A.2

In the case of a dwellinghouse on article 1(5) land, development is not permitted by Class A if—

(a) it would consist of or include the cladding of any part of the exterior of the dwellinghouse with stone, artificial stone, pebble dash, render, timber, plastic or tiles;

(b) the enlarged part of the dwellinghouse would extend beyond a wall forming a side elevation of the original dwellinghouse; or

(c) the enlarged part of the dwellinghouse would have more than one storey and extend beyond the rear wall of the original dwellinghouse."

iii) Article 1(2) defines a number of terms, including the following:

"building"—

(a) includes any structure or erection and, except in Parts 24, 25, 33 and 40, Class A of Part 31 and Class C of Part 38, of Schedule 2, includes any part of a building, as defined in this article; and

(b) does not include plant or machinery and, in Schedule 2, except in Class B of Part 31 and Part 33, and does not include any gate, fence, wall or other means of enclosure;

"existing", in relation to any building or any plant or machinery or any use, means (except in the definition of "original") existing immediately before the carrying out, in relation to that building, plant, machinery or use, of development described in this Order;

"original" means—

(a) in relation to a building, other than a building which is Crown land, existing on 1st July 1948, as existing on that date and, in relation to a building, other than a building which is Crown land, built on or after 1st July 1948, as so built;

(b) in relation to a building which is Crown land on 7th June 2006, as existing on that date and, in relation to a building built on or after 7th June 2006 which is Crown land on the date of its completion, as so built;"

iv) Article 1(5) provides:

"(5) The land referred to elsewhere in this Order as article 1(5) land is the land described in Part 2 of Schedule 1 to this Order (National Parks, areas of outstanding natural beauty and conservation areas etc.)."

v) Part 2 of Schedule 1 provides:

"Land within—

(a) ………..;

(b) an area of outstanding natural beauty;

(c) ………"

17. Both parties are agreed as to the approach to be taken in construing the GPDO. The ordinary meaning of the language used is to be ascertained when construing the development order in a broad or common sense manner. The authority for that proposition is the judgment of Goulding J in English Clays Lovering Pochin & Co. Ltd. V. Plymouth Corporation [1973] 2 All ER 730 at page 735

"It is common ground that the development order is to be construed in what has sometimes been called in argument "a broad or common sense manner," at any rate in the manner appropriate, as counsel say, to a document framed for administrative purposes rather than as an instrument couched in conveyancing language. That has not prevented counsel on either side from spinning elaborate arguments worthy of a more complicated subject matter and drawn from other provisions of the development order itself, from other statutes or statutory instruments, and from reported cases on different documents. While I greatly admire and acknowledge the thoroughness of counsel's endeavours, I do not find in the end that I can get any guidance from those illustrative arguments. It appears to me that having considered all, I have to apply myself to the ordinary meaning of the language used by the Minister in making the development order, in the passages from it which I have just read."

18. The researches of both counsel revealed no previous authority on the interpretation of the provisions of the GPDO which are at issue in this case.
19. There is no dispute between the parties that a permitted development right is capable of being a 'fall back'. The approach to be taken by a decision maker when considering a 'fall back' argument was set out by Ian Dove QC (as then was) (sitting as a Deputy High Court Judge) in Gambone v. Secretary of State for Communities and Local Government and Wolverhampton City Council [2014] EWHC 952 (Admin) at paragraphs 25 and 26:

"25 The fallback argument is in truth no more or less than an approach to material considerations in circumstances where there are, or may be, the opportunity to use land in a particular way, the effects of which will need to be taken into account by the decision-maker. That involves a two-stage approach. The first stage of that approach is to decide whether or not the way in which the land may be developed is a matter which amounts to a material consideration. It will amount to a material consideration on the authorities, in my view, where there is a greater than theoretical possibility that that development might take place. It could be development for which there is already planning permission, or it could be development that is already in situ. It can also be development which by virtue of the operation of legal entitlements, such as the General Permitted Development Order, could take place.

26 Once the question of whether or not it is material to the decision has been concluded, applying that threshold of theoretical possibility, the question which then arises for the decision-maker is as to what weight should be attached to it. The weight which might be attached to it will vary materially from case to case and will be particularly fact sensitive. Issues that the decision-maker will wish no doubt to bear in mind are as set out in the authorities I have alluded to above such as the extent of the prospect that that use will occur. Allied to that will be a consideration of the scale of the harm which would arise. Those factors will all then form part of the overall judgment as to whether or not permission should be granted. It may be the case that development that has less harm than that which is being contemplated by the application is material applying the first threshold, and then needs to be taken into account and weight given to it."

Ground 1

20. Mr Pike on behalf of the Claimant submitted that, in order for the limitation at paragraph A.2(c) of Part 1 of Schedule 2 to the GPDO to make sense, the words "rear wall" must be read as meaning the rear wall at ground level. In support of that argument, he submits that, if the rear wall at first floor level is taken as the point beyond which any enlargement at first floor level may not extend, there could never be an enlargement at first floor level. Mr Pike submits that the inspector's interpretation of paragraph A.2(c) as set out at paragraphs 16 to 18 of the decision letter was wrong in law and his reasoning was inadequate. In support of his argument that the reasoning was inadequate Mr Pike submits that the statement in the last sentence of paragraph 16 of the decision letter which reads "In passing, the provision does not exclude all extensions above ground floor level, only those extending from a rear wall" contradicts the rest of what the inspector said at paragraphs 16 to 18 of the decision letter.
21. Mr Pike also submitted that there will be circumstances in which a two storey dwelling house has a roof, which at the rear, is pitched from the central ridge line down to eaves at ground floor level. In such circumstances he submitted there would be no rear wall at first floor level. He submitted that such circumstances were present in this case in relation to the original dwelling.
22. Ms Parry, on behalf of the First Defendant, submitted that rear wall of the original dwelling house is the rear wall next to the extension which is being built. She submits that the inclusion of the words "and extend beyond the rear wall of original dwelling house" in paragraph A.2(c) is to make it clear that the limitation relates to a rear extension. She submits that the effect of paragraph A.2(c) is to provide that an extension at first floor level in an AONB is not permitted development. Ms Parry also submitted that a comparison could be drawn between the provisions of paragraph A.1(h)(ii) in Class A of Part 1 of Schedule 2 to the GPDO and paragraph A.2(c) as both those provisions identify the wall of the dwelling house to which the limitation in question applies. She submitted that the purpose of the reference to the rear wall in paragraph A.2(c) is to identify the fact that the limitation relates to extensions to the rear wall of a dwellinghouse, in the same way that the reference to a wall forming a side elevation of a dwelling house in paragraph A.1(h)(ii) identifies that the A.1(h) limitation relates to side elevations.
23. Ms Parry submits that the inspector's reasoning, which included reference to the Technical Guidance and advice on the Planning Portal, was adequate, and that even if it were held to be inadequate no prejudice was caused to the Claimant because the interpretation was correct as a matter of law.
24. I accept the submissions made by Ms Parry in relation to the construction of paragraph A.2(c). The effect of paragraph A.2 is to introduce additional limitations to those imposed by paragraph A.1. The additional limitations apply in the case of a dwellinghouse on Article 1(5) land, which includes land within an AONB. There is no need to read in words to paragraph A.2(c), whether the words suggested by Mr Pike, or any other words, to make sense of the provision. In order to fall within paragraph A.2(c) two conditions have to be met, namely that the enlargement is more than one storey, and it extends beyond the rear wall of the dwelling house. As Ms Parry submitted those two conditions are very similar to those set out at paragraph A.1(h)(ii), which are that the enlarged part of the dwelling house would extend beyond a wall forming a side elevation and be more than one storey. I do not accept Mr Pike's submission that because those two conditions are expressed in a different order in paragraphs A(1)(h) and A.2(c) respectively they have a different meaning. The effect of paragraph A.2(c) is that, in the case of a dwelling house on Article 1(5) land, an extension of more than one storey which extends beyond the rear wall of the original dwelling house, being that part of the wall immediately adjacent to the extension at the same vertical level as the extension, is not permitted development.
25. The effect of that analysis is that no extension of more than one storey beyond the rear wall of the original dwellinghouse has the benefit of permitted development rights if the dwellinghouse is on Article 1(5) land. This would not, as submitted by Mr Pike, make the restriction in paragraph A.2(c) meaningless. Indeed it would be consistent with the approach taken to other permitted development rights in relation to dwellinghouses on Article 1(5) land. For example paragraph A.2(b) removes all permitted development rights to extend beyond a wall forming a side elevation. As another example, paragraph B.1(e) provides that development is not permitted by Class B (the enlargement of a dwellinghouse consisting of an alteration or addition to its roof) if the dwellinghouse is on article 1(5) land. It should also be noted that the analysis is also consistent with the view taken by the First Defendant at page 28 of his Technical Guide. Mr Pike's further point, that a two storey dwelling house may have a roof, which at the rear, is pitched from the central ridge line down to eaves at ground floor level, and therefore has no rear wall at first floor level, does not assist him. In such a case a rear extension at first floor level would require alterations to the roof. The enlargement of a dwelling house consisting of an addition or alteration to its roof would not, by virtue of paragraph B.1(e), be permitted development (pursuant to Class B of Part 1 of Schedule 2 to the GPDO) if the dwellinghouse was on Article 1(5) land. As a result, on the basis of what I have found to be the correct interpretation of paragraph A.2(c) of Part 1 of Schedule 2 to the GPDO, the position is consistent; an extension at first floor level is not permitted development in an AONB whether or not a house has a roof which, at its rear, is pitched from the central ridge line down to eaves at ground floor level.
26. The second point taken by Ms Parry, is that at paragraph 18 of the decision letter, the inspector may have been referring to the argument set out at Appendix 7 to the Council's further representations dated 12^th August 2013 in which it was stated "For the avoidance of doubt, there was clearly an intervening wall between the two roof slopes of the original rear wall of the dwellinghouse in this case which ran the full width of the house."
27. At paragraph 18 of the decision letter the inspector stated:

"…. Whatever the depth of the lean-to, the extension at first floor level was built out from the (first floor) rear wall and results in the enlarged part of the dwellinghouse having more than one storey. It is thus not permitted development."

28. The inspector's conclusion, at paragraph 18 of the decision letter, that the extension at first floor level was not permitted development, was based upon his finding that it was built out from the first floor rear wall, and was therefore based upon his conclusion that the effect of paragraph A.2(c) of Class A of Part 1 of Schedule 2 to the GPDO is to exclude from permitted development enlargement of dwelling house built out from a rear wall at more than one storey. As a result Ms Parry's second point does not add anything to her principal submission.
29. Mr Pike also attacks the inspector's reasoning. He submits that the statement which appears in paragraph 16 of the decision letter, "In passing, the provision does not exclude all extensions above ground floor level, only those extending from a rear wall" contradicts the rest of what is said at paragraphs 16 to 18 of the decision letter. There is, in my judgment, no contradiction and no deficiency in reasoning. The inspector was pointing out that the limitation imposed by paragraph A.2(c) applies to extensions beyond the rear wall of the original dwellinghouse, not extensions to other walls. In any event, and as submitted by Ms Parry, even if the reasoning was deficient, the Claimant did not suffer substantial prejudice as the inspector proceeded on the basis of a correct interpretation of the provisions of the GPDO.
30. For those reasons, this ground of claim fails.

Ground 2

31. Mr Pike, for the Claimant, submits that paragraphs 30 and 35 of the decision letter reveal an error of law, namely that the inspector misinterpreted the effect of Article 3(5) of the GPDO when he held that as rear and side extensions to the Property had been erected unlawfully, as they were not permitted development and did not have the benefit of an express planning permission, "It follows that no permission is granted under Schedule 2 at the present time" (paragraph 35 of the decision letter).
32. Mr Pike submits that the effect of Article 3(5) of the GPDO is not to suspend or terminate all permitted development rights which might pertain to a building simply because some part of the building has been erected without the benefit of planning permission. He submitted that Article 3(5) does not have the effect of removing any permitted development rights from a building if some part (only) of that building has been erected unlawfully.
33. Mr Pike provides examples in support his argument. He submits that Parliament could not have intended that if an extension to a dwelling house on Article 1(5) land had been clad in timber or stone, in breach of the limitation contained in paragraph A.2 (a) of Class A of Part 1 of Schedule 2 to the GPDO, the whole of the dwellinghouse house would be regarded as unlawful for the purposes of Article 3(5). He provides a further example, namely that if a house owner altered a flue without planning permission he would lose all other permitted development rights.
34. Mr Pike further submits that the inspector's interpretation of Article 3(5) led him to conclude that no permitted development rights could be relied upon and therefore there was no 'fall back' position. Mr Pike also submits that inspector gave little or no weight to the fact that the Claimant could lawfully erect an extension to the front of the Property following the grant of a lawful development certificate.
35. Ms Parry, for the First Defendant, submits that given that 'building' includes any part of a building, if any building operations involved in the construction of part of an existing building are unlawful then reading Articles 1 and 3 of the GPDO together permitted development rights are excluded.
36. Ms Parry submits that the inspector's approach to the fall back position was to consider the development that could take place. In approaching that task he acknowledged that the Council had granted a lawful development certificate for the front extension and that, although he was of the view that the certificate had been granted incorrectly, he proceeded on the basis the development certified as lawful could go ahead. Ms Parry submits that the inspector concluded that the more realistic alternative was that the side and rear extensions would be reduced to GPDO tolerances.
37. I accept Ms Parry's submissions on the construction of Article 3(5) of the GPDO. Article 1(2) defines the word 'building' as including 'part of a building'. The context does not require that the definition in Article 1(2) should not be applied. Certain classes of permitted development grant permission in connection with an existing building; Class A of Part 1 of Schedule 2 is such a class. The effect of Article 3(5)(a) is to provide that such permitted development rights shall not apply if " ..the building operations involved in the construction of that building are unlawful". The word 'building' which follows the word 'that' must, in accordance with the definition in Article 1(2) be read as including 'any part of a building'. It follows that, on a simple construction of the words, if the building operations involved in the construction of any part of that building are unlawful, the permitted development rights granted in connection with the existing building do not apply.
38. Mr Pike submits that such a construction of Article 3(5) would lead to surprising outcomes. In my judgment there is no justification for interpreting Article 3(5) in any other way. In any event, if unlawful works have been carried out, such as the cladding referred to by Mr Pike in his example, it would be open to the dwelling owner (or some other person) to apply for planning permission to retain the extension with the cladding, or to carry out works to remove the cladding, or to obtain planning permission for the flue. Once planning permission had been granted, or the cladding had been removed, permitted development rights would, once again, apply.
39. The inspector did consider the 'fall back' position. At paragraph 5 of the decision letter he identified that it was necessary for him to determine the extent of the permitted development rights available before the works begun, and that those rights would constitute a 'fall back'. At paragraph 18 of the decision letter the inspector identified that fact that a single storey extension of no more than 4 m in depth and height would be permitted development. He acknowledged that the exercise of those permitted development rights amounted to a 'fall back' when he stated in the last sentence of paragraph 18 of the decision letter: "I address other 'fallback' possibilities below." At paragraph 27 of the decision letter the inspector referred again to the extent of the permitted development rights at the rear of the Property.
40. At paragraph 28 of the decision letter the inspector referred to the fact that an extension at the front of the house had been certified as being lawful and then stated "It is not for me therefore to look further into that aspect." At paragraph 31 of the decision letter the inspector found that there was a risk that the extension subject to the lawful development certificate would be built. The inspector identified the material consideration, namely the ability to construct a front extension, identified that it would lead to equally harmful consequences to the development under consideration, and identified that there was a risk that it would be built. Those factors were taken into account in forming the overall judgment and weight given to them.
41. It is clear that the inspector identified the fall back as a material consideration and took it into account.
42. For those reasons ground 2 fails.

Conclusion

43. For the reasons I have given the application is dismissed.