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5. CONSIDERING OPTIONS AND ISSUES FOR A PD USER/DESIGN CODE IN SCOTLAND

5.1 An important aspect of this Study has been consultation. This chapter describes two important elements of consultation - the interviews with the Expert Advisors, and the workshop which was held. Some additional consultation was carried out later in the Study, and this is addressed in chapter 6. The purpose of the consultation initiatives described in this chapter was to assist the study team to identify the key elements of a code and tease out issues which should be addressed in the design of the code. This stage was particularly important as the research findings had confirmed that there is no existing example of a stand-alone "Code" for the purpose of setting out PD limits: in effect the Scottish Government's initiative to secure such a code will break new ground.

Consultation with key advisory bodies

5.2 A list of expert advisory bodies was drawn up in agreement with the Scottish Government at the beginning of the study. It was agreed that these Advisors should be engaged as appropriate along with the planning authorities in the consultation processes. All were invited to the workshop, but in advance of that, bilateral meetings were held with four key bodies. The outcome of the discussions informed the direction that the research (presented in chapter 4) should take and the issues/options for the workshop to consider. A summary of these consultation meetings now follows.

5.2 The Prince's Foundation for the Built Environment (Ed Taylor 24/8/07). Foundation projects using design codes currently include Poundbury, Dorset (Duchy of Cornwall), Newquay (Cornwall), Castletown (Caithness), Ellon (Aberdeenshire, with Scottish Homes) and possibly Cumnock (Dumfries House, East Ayrshire). Pattern books are available for Poundbury, Ellon and Newquay. At Poundbury, few examples of householder developments have arisen as yet; a residents' association acts in a consultative capacity to the Duchy as landlord and may be given powers of control in longer term; 3 management companies have been established in different areas of the town in which Duchy has controlling interest.

5.4 The Prince's Foundation carries out an "inquiry by design" process to engage with communities in the development of design codes as well as the general planning of a new or existing community. They work closely with Andres Douany who has championed the charrette process. (The charrette process is an intense design event where different parties come together and work jointly, collaboratively, to forge a cross-cutting approach to design.) The output of a Charette is a considered piece of work which reflects and benefits from all the professional inputs and is jointly owned by all the participants. Whether using mandatory codes for a specific project or general passive guidance, the engagement of the community is essential. The accessibility of the guidance is a key issue. A recommended accessible code for a new community is for Sherford, near Plymouth. This has been prepared as part of the development plan. The most recommended example of design guidance in Scotland is Moray Council's guide to the design of housing in the countryside.

5.5 Built Environment Forum Scotland Urban Design Working Group (Richard Atkins 24/8/07). In an extensive discussion of sustainability issues, it was concluded that the main implications are for microrenewables and not for householder PD. Ways of using planning and design codes were considered to place a greater emphasis on whole life costing of the consequences of small building works. A recent study had concluded that ratio of build cost to maintenance cost to salaries over the lifetime of an office building is £1 : £5 : £200. A similar model might be developed for lifestyle costs, reflected in building features, instead of salaries.

5.6 Architecture and Design Scotland (Adam Davies; Eric Dawson 31/8/07). It had been A+DS which had recommended splitting the brief into scoping and code design. The interviewees were therefore well briefed on the purpose of the study. Knowledge of design coding guidance for ODPM and CABE suggested that this was predicated on large scale development going through the consent process, not with a view to codifying minor development. Reference was made to the Queensland Development Code and self assessment approach which had developed away from the full consent processes in other parts of Australia. A similar regime (three tiers of approval) operated in Christchurch New Zealand.

5.7 It was stressed that PD codes must be specific and mandatory : not judgmental and discretionary. Codes and related guidance must include a simple explanation of the principles behind them (to assist determining need for consent or for enforcement). The building control process can be part of consent/enforcement regime as in Queensland and the USA. In Queensland there is still scope for local planning authority adaptation.

5.8 The main design issues and concerns are cumulative impact, special character, and neighbour impact. Under the Queensland regime, these are dealt with by the Residential Design House Code, Character Code and Small Lot Code in the Brisbane City Plan. The proposed codes should be subject to rigorous testing before adoption, against best and worst case scenarios. There should be a simplified consent procedure for householder development which requires consent, subject to same design code principles, but there are skills and resources issues.

5.9 Scottish Building Standards Agency (Jonathan Astwood, 3/9/07). J Astwood is also a member of the steering group. There has been a major shift in Scottish Building Standards system towards self assessment. However, the greatest change towards exemption from the need for a building warrant has taken place in regard to internal works, not the footprint of the building beyond current 8 square metres. No changes are likely in the foreseeable future relative to the type of developments under consideration for extended PD.

5.10 Renewables and sustainability issues are actively under consideration, supported by the new Scottish Government administration. The Government's Expert Panel was due to meet on 17/18 September with a view to recommendations which could result in changes to the Building Standards on 1 May 2008 (annual round). The remit of the Panel includes other measures beyond the Building Standards system. With regard to SPP6 and the reference to planning standards which are higher than Building Regulations requirements, the Panel may well consider extending this principle.

5.11 It was concluded that there was little that the design codes for PD could contribute to energy conservation. The commitment of the UK Treasury to abolish stamp duty on carbon zero buildings in October, would be a far greater incentive. With reference to the Code for Sustainable Homes in England and Wales, it was confirmed that Scotland will not follow suit on an advisory basis but will include any requirements in regulations.

5.12 Accessibility is a possible issue for amendments to the Building Standards Regulations. Daylighting and privacy will not be covered by building standards and should remain a planning issue. The E-planning and expert systems approach can benefit building control and there may be the prospect of some integration.

Options and issues

5.13 As a result of these consultations and the research findings, a discussion paper was prepared to focus on options and issues which should be addressed in designing a code or a tool to visualise PD rights. A copy of this is contained in Appendix 3.

5.14 Another aspect of the Study, identified earlier, was the importance of thinking in visual terms, and the Study team were seeking to take this forward too. It was considered important for a workshop to focus on visualisations of practical issues and options, thereby encouraging planning authority representatives and expert advisors to contribute the benefit of their experience. Hence the discussion paper was linked to the development and production of sketches.

5.15 The Study team had also given consideration to the range of building elements which should be addressed in a PD Code. This was in line with the structure of codes generally, and was a way of addressing the customer-focus. In developing a "User/Design Code" one of objectives is to ensure that the non-professional will be able to interrogate the code on the basis of the work he or she wishes to carry out. As a starting point, key elements were identified and a discussion paper took this further, centering around a few main themes.

Planning and design issues for permitted development

5.16 The main issues of contention suggested were in relation to the forms of householder development to be addressed in a Code and architectural interpretation of these. For instance, protection of privacy, proximity to boundaries, overlooking and daylighting. These may be part of the longer term public interest in general amenity which stems from the desire for reasonable individual privacy and consequent mutual respect, and pride of place within the wider neighbourhood.

5.17 Key issues based on the most significant elements of change were suggested for consideration. Each of the following issues was linked to a number of particular building elements.

• Issue 1 - street scene and townscape
• Issue 2 - local character
• Issue 3 - proximity to boundaries
• Issue 4 - overlooking
• Issue 5 - daylighting/overshadowing
• Issue 6 - hard standings
• Issue 7 - Overdevelopment
• Issue 8 - Renewable energy and energy conservation
• Issue 9 - boundary treatments
• Issue 10 - flatted development
• Issue 11 - Others

Dealing with definitions

5.18 If it is to be operated consistently, a Code must define its key concepts or terms. The key definitions identified at the outset were "Curtilage" and the impact of the proposed 40% rule, "Building line" and the impact on positioning of side extensions, claddings etc., and "Fronting a road". It was hoped through the workshop and circulation of the Discussion Paper to identify other important definitions.

Options for design codes by building elements

5.19 All codes make reference to certain building elements. However, a Householder PD code would need to focus primarily on those building elements which it is necessary to control or limit. There is a need to consider fully which elements should be addressed, and how these might be addressed, in order to clarify the most appropriate structure of a PD code.

All extensions - porches and front extensions, side extensions, rear extensions, roof extensions, dormers, balconies.

Free standing buildings - in front of the building line, to the side, to the rear, sheds, bin storage, fuel containers etc

Boundary treatments

Openings - alterations to existing openings and new openings, groundworks

Access ramps - decking, raised ground, hard standing

Cladding and use of materials

Flatted and terraced houses

5.20 Flatted and terraced houses are intended for similar treatment in the new householder PD provisions - possibly in the same way as other dwellings as far as the scale of PD allowance. It was important to discuss this and consider refinements - for example the definition of curtilage where there is no clear division of the garden space; upward extension or balcony on top of a ground floor extension etc.

Procedural issues for local design interpretation, public awareness and enforcement

5.21 It was acknowledged in the discussion paper that there are detailed issues for procedures resulting from the introduction of a design code system. Whilst these are outside the brief for this Study, it would be difficult to assess fully the enforceability and effectiveness of the options for codes without some understanding of the procedures on which they should depend.

5.22 The discussion paper raised the issue of creating a framework for local design codes: One of the research findings was that it was looking unlikely that a national design code would be able to address more than basic good manners in design, with any reflection of distinctive architectural style remaining a matter for local application. Could a local perspective be retained as an advisory element? Linked to this was the question of how to handle areas of special character.

5.23 An effective code will need to be simple, clear and legible to people who are not used to reading plans. Householders considering carrying out minor developments do not resort immediately to professionals for advice and only the minority will use an architect for the more significant extensions. The greater the impact from the publication, the greater will be the chance that the client will exercise some better judgement and achieve a higher standard of design quality.

5.24 The standard of presentation and, crucially, the comprehensibility and availability of the code was therefore highlighted as a key issue. Options for ensuring widespread access include availability on a consumer-friendly website, widespread distribution of the document among all professional agents and builders, inclusion in building warrant application packs, as well as local authority one stop shops, Citizens Advice Bureaux, libraries etc, a launch campaign and periodic refreshers, possibly associated with public campaigns about architecture.

5.25 A key procedural issue raised was the question of some form of notice to neighbours (for information only) or Prior Notification, even in exceptional circumstances, to make a system of design codes more effective. The Study team had some concerns about the reduction in neighbour notification which would inevitably happen as a result of extended PD. This might be construed as being at odds with the general policy direction of increasing community involvement in the planning process. Another possibility raised was whether there was scope for monitoring the application of a code through building warrant procedures such as happens in some States of the USA. Some Councils already make cross-checks between weekly lists of planning and building warrant applications to monitor compliance with the need for consent.

Consultation and workshop

5.26 The Options and Issues summarised above and captured in full detail in the discussion paper ( Appendix 3) were the focus for a workshop held on 27 ^th September 2007. The discussion paper was circulated to participants and all planning authority contacts in advance of the workshop and formed the basis of four separate discussion sessions, as follows.

1. Planning and Design Issues for Permitted Development

2. Dealing with some Definitions

3. Options for Design Codes by Building Elements

4. Procedural Issues for Local Design Interpretation, Public Awareness and Enforcement

5.27 The key session was in the afternoon - session 3. This was a fully participatory workshop at which the degrees of control which should be exerted over building elements were discussed in detail.

5.28 Illustrations played an important part in the workshop sessions. Reference was made to planning authorities' own illustrations of current PD rights - which tend to display best practice rather than set out the full potential of PD rights - plus a number of illustrations showing full PD rights under current GPDO, possible new PD rights in line with the 2006 Study, and additional sketches to tease out and consider particular issues. A sample of the sketches used at the workshop are included here and later in this Chapter.

Illustration 11: Workshop sketch illustrating current PD rights envelope

A report from the Workshop and a list of participants are included in Appendix 4.. In summary, the key issues considered in the course of the workshops were:

• The proposals to base PD limits on 40% of curtilage, in total, or in addition to original footprint.
• Other issues relating to the details of extending PD provisions.
• The question of whether or not a user code can encourage "good design" but at the same time be legally accurate and binding.
• How to address local character sensitivities.
• Should the distinction be drawn between "not development" and PD?
• Procedures to accompany a PD user/design code.

Illustration 12: Workshop sketch illustrating potential future PD rights envelope

Outcome from the workshop

5.30 The findings of the workshop, included in Appendix 4, were sent out to participants, and were used as the basis to take the Study forward to the next stage. These are now summarised in this section.

Amending current PD provisions

5.31 There was general agreement that a revision of the PD provisions should not involve simply expanding or extending PD thresholds in accordance with the 2006 Study recommendations. In principle participants accepted the overriding aim to extend PD rights, and supported the desire to reduce the workload arising from householder applications. However, even although the majority of householder applications generally obtain planning permission, what is hidden from the statistics is the work involved by case officers negotiating an improved design solution. The use of a code or codes to provide guidance on good design was supported. If this design analysis points to a need for a degree of restriction to current PD rights, this should be accommodated. However, it will be important to ensure that sufficient additional PD rights are given to meet the overall aim of delivering a significant extension to Householder PD. Any such "restriction" should therefore be justified in the interests of design quality or the objectives of this Study. Nevertheless, it was acknowledged that better explanation and publicity of the scope of PD rights might have the effect of encouraging more proposals within these limits.

Purpose of the Householder PD code

5.32 The code or codes must make it absolutely clear that this is about "Permitted Development". There should be clarity that the provisions do not impinge on planning authority policies or design guidance and must not even hint that over and above these limits development may necessarily be problematic. The underlying aim is to define the PD thresholds on the basis that development up to these limits will not give rise to any adverse impact on residential or visual amenity of any significance and explain the advantages for householders in terms of no requirement for a planning application.

Conservation areas and listed buildings

5.33 As sensitive elements of the built environment, conservation areas and listed buildings should be exempt from all Householder PD. In other words everything to be defined as Householder PD will need full planning permission in conservation areas or if a dwelling or a flat is a listed building. Such an approach will avoid the need for seeking/revising Article 4 Directions. However, further consideration will need to be given to how this will match with LBC provisions.

Special controls for similar areas which are not conservations areas

5.34 There was discussion about tailoring PD rights to different urban typologies. Questions were raised about whether a single code could address all the required elements across all types of property and still be accessible and concise. There was a suggestion that similar areas should be identified/coded, including areas where the urban form is more sensitive or of a particular quality and therefore requires a higher degree of protection from minor new householder development than other areas. These could be seen as areas which are not quite conservation areas but nevertheless where less freedom should be permitted. However, the workshop participants could not agree on this and, in fact, the counter view tended to prevail. Above all, the greatest need was considered to be the need for clarity. There was no support from planning authority participants for introducing further complexities into procedures. Controls should continue to focus on conservation areas and listed buildings where it was generally accepted that there should be no PD. Everywhere else full PD rights should be able to be exercised, bearing in mind that there may still be a role for Article 4 Directions in truly exceptional circumstances.

Neighbour considerations

5.35 The need for any permission from or notification to neighbours should be avoided. Such procedures would have the effect of causing confusion with planning application notification arrangements (which are in any case due to change because of the provisions contained in the Planning Etc. (Scotland) Act 2006). The overriding objective must be for clarity and simplicity of procedures. The options discussed suggested greater control over householder development close to boundaries, based on a "1 metre no PD Zone" next to such a boundary. It is within this zone that neighbour disputes commonly tend to arise and accordingly if such an approach is taken forward this will help to ensure that the new PD does not cause any significant impact on neighbours (and less impact than current PD) and strengthens the case for no formal neighbour notification procedures.

Householder PD and curtilage

5.36 Curtilage is not considered to be a good basis for taking matters forward. It does not always relate to the size of the original dwelling, and measuring the size of a proposed extension against the size of the curtilage would not necessarily help to ensure that an extension does not over-dominate the original house/flat. How an extension relates to the original house is considered to be a more important consideration. In addition, it became clear in looking at real examples of houses within plots that in many cases houses already occupy 40% of the curtilage. Hence this measure might be overly restrictive and not deliver the extra PD sought. Furthermore, there was agreement that in legal terms the definition of "curtilage" is difficult.

Controversial building elements

5.37 Although the workshop sessions produced a clear consensus on many aspects to be covered in a code, there were areas where there were conflicting opinions. The types of extension or building elements where there is currently no clear consensus or a majority view are as follows.

• Dormers - One workshop group expressed widespread support for the introduction of some form of PD for dormer windows, albeit noting that dormers come in many forms and establishing the parameters of PD may not be easy. The other workshop group did not support PD for dormers - on the front and sides they cause visual amenity concerns; on the side and rear they can cause residential amenity concerns due to loss of privacy. However, existing codes have incorporated dormers and there may be potential to employ objective criteria (percentage of existing roof, defined distances from sides, ridge etc).

Illustration 13: Workshop sketch illustrating potential future PD rights for dormers and porches

• Porches - One workshop group considered that there was scope for small porches, up to a defined maximum floor space to be included as PD in the code (as currently permitted simply to give storm shelter under PD in England). However, concern was expressed that even small porches, individually or cumulatively, can have a negative impact on streetscapes. Such PD should therefore perhaps not extend to terraced houses. The other workshop group expressed the view that there should be no PD extensions to the front of a building, including porches. However, as the concerns expressed related to the impact on street rhythm - especially for terraced houses or cottages - then this may point the way towards the framing of a code to allow front porches in certain circumstances.
• Two-storey extensions - One workshop group discussed the particular problems surrounding 2-storey extensions - mass, overlooking, privacy, and light. There was a general view that 2-storey extensions should not be PD (particularly in relation to mid-terrace dwelling-houses). However, this would be more restrictive than the current position (2-storey extensions can be PD - subject to restrictions on total floor space and height). The other workshop group did not discuss such concerns, resting on the premise that they may be PD providing they do not dominate the existing building. However, they may not have considered the subject in the same depth. 2 storey extensions will require careful handling in a code.

Illustration 14: Workshop sketch illustrating potential future PD rights for 2 storey extension

• Windows - There was no consensus on the degree of control to be exercised over alterations to windows, such as new window frames. There is a variety of interpretations about what is and is not "material" and hence the type of alterations which constitute development. On the one hand there is a strong desire to control new window frames; on the other hand the counter-view was expressed that "it's too late" - so many window frames have been changed that there is no longer any point in seeking to control these. The consensus expressed was for the code to give clarity on this - this would benefit planning officers and applicants, aid consistency and achieve efficiencies. There was greater sensitivity expressed about tenements, many of which (but by no means all) are within conservation areas. This will require careful consideration as it is a controversial issue, and initial clarification is required of what constitutes development for the purposes of section 26(2)(a)(ii) (works materially affecting the external appearance of the building).

Extending PD rights to flats

5.38 Aside from the discussion about new windows, there was general consensus that outbuildings erected in the gardens of flats should be permitted development. It was generally agreed that ground floor extensions to flats could also be PD with careful control to ensure there was no adverse impact on neighbours. Although this was discussed only by one workshop group, no dissent was raised to the principle of this.

Illustration 15: Workshop sketch defining an envelope for PD for flats

How to handle materials

5.39 There was discussion about including provision for all PD to be subject to a standard condition that all materials should "match existing". Whilst such a standard may be generally desirable, it would be difficult to enforce (what does it mean "to match existing"?). In any case it is not always desirable to have materials exactly matching existing (there are quality, durability and sustainability issues). Hence such a requirement would not necessarily be in the interests of good design. Painting and cladding is already contained within current PD and no new control is envisaged. If a standard enforceable code element / condition can be devised to require materials to match existing ( e.g. similar to the Building Standards approach), then there would be support for this, but it was accepted that this may be both overly restrictive and unenforceable.

Enforceability, accessibility, community and other issues

5.40 There was discussion about the need to ensure the code itself fits with the PD rules, avoiding ambiguity. The legal status of the code will have to be clear. It was agreed that there should not be any conflict between a clearly expressed code which is enforceable, and a code which is expressed in a manner which will be easily understood by all people - professionals and non-professionals. Planning Aid for Scotland confirmed that a lot of the issues which cause concern to people outside the planning system relate to householder developments - neighbours' extensions, boundary walls, dormers, proximity to boundaries, overlooking, daylighting and overshadowing, and (increasingly) domestic renewable energy scenarios. Many concerns relate to the detailed impact on the environment and so the aspirational ideals contained within a code to encourage good design would be welcome. While it was agreed that devising the code (or some related tool) as an interactive web-based question set would be welcome, the code will also need to be a static picture and a clear set of rules for reference purposes and to ensure that it is accessible to all. Consideration should be given to those who have literacy difficulties, do not understand planning jargon, and cannot understand complicated sketches. While the sketches emerging are well-detailed and thought out, it will be important to simplify these further to ensure accessibility for the person who does not know much about the planning system, perhaps coming to it for the first time. This will present a challenge for the Code designers.

5.41 Other matters discussed and generally agreed (as detailed in Appendix 4) were:

• Conservation areas and listed buildings should be exempt from Householder PD.
• It would be difficult for a national code to address local design issues.
• Neighbour information/notification procedures would cause confusion.
• A code could consider including both statutory and discretionary parts.

Conclusions from consultations

5.42 The discussions with expert Advisors provided a useful steer regarding the elements to be focused upon. For instance, it was agreed as a result of these that the "sustainable" aspects are already well addressed by Building Standards and need not be pursued in depth through this Study. Some of these expert advisors also attended the Workshop which provided a good opportunity to explore in visual terms and in greater depth the implications of extending PD in line with the recommendations of the 2006 Study. One of the key outcomes was a steer for how to refine those recommendations ensure that the objectives of the current Study are met.

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