Party walls and permitted development issues in residential property often overlap. How they affect each other is often misunderstood.
- What is a permitted development?
Under the Town and Country Planning Act 1990 there is a general requirement that any structural building work or additions to a house require planning permission.
A permitted development is building work to a house for which planning permission is impliedly granted by the Town and Country Planning (General Permitted Development) (England) Order 2015 so there is no need to apply for further permission. This can include extensions, alterations to the roof, construction of swimming pools etc.
- When are party walls relevant for permitted developments?
A common example is when a building owner wants to construct a dormer extension to their roof and as a result has to raise the party wall between their property and their neighbour’s property.
- Why are they relevant
Building work can only be a permitted development if it is work within the ‘curtilage’ of the property. There is no statutory definition of “curtilage”, so it is often assumed to be limited to being within the legal boundaries of the property.
The boundary between two properties separated by a party wall is usually directly down the middle of that wall (s.38, The Law of Property Act 1925). Confusion often arises over whether the adjoining owner’s half of the wall falls within the definition of curtilage.
If a planning inspector decides that the adjoining owner’s half of the party wall is not within the curtilage, then a dormer extension requiring the party wall be raised is not a permitted development, and a separate application for planning permission is required.
- What is the correct legal position?
The legal boundary and the boundary of the “curtilage” aren’t necessarily the same thing. Where the curtilage ends depends on the facts of each particular case. The principles for determining this were recently confirmed in Burford v Secretary of State for Communities and Local Government:
“not restricted in size, but it must fairly be described as being part of the enclosure of the house to which it refers”.
Usually a party wall can only realistically be considered a single structure; the conclusion that one half of a party wall does not fall within the curtilage of a property applies an artificial distinction where the court has clearly developed a holistic approach. This is supported by past planning inspector decisions (albeit non-binding), in relation to 77 Platts Lane, Hampstead and 143 Ordnance Road, Enfield.
While each decision turns on the facts of the particular case, the correct application of the authorities means that an adjoining owner’s half of the party wall should usually be considered part of the curtilage of a building owner’s property, and therefore the construction of, for example, a dormer is a permitted development.
For further information on the above topic please contact Kate Cooper or a member of our Dispute Resolution team.