When the regime applies
The precondition is a contiguously built-up locality. Two features must coincide.
| Feature | Meaning |
|---|---|
| Contiguity of development | the existing development, despite gaps, conveys an impression of closure |
| Locality | the development carries a certain weight and expresses an organic settlement structure |
Where either is absent, the outer zone applies, with considerably stricter requirements. The article on development in the outer zone covers the consequences.
Note too that § 34 also applies where a simple local plan exists. Its provisions govern so far as they reach, and fitting in must be assessed for everything else.
The four features of fitting in
A project is permissible where it fits into the character of the immediate surroundings. Four features govern that assessment.
| Feature | Subject |
|---|---|
| Type of development | residential, commercial, mixed and others |
| Extent of development | height, storeys, footprint, massing |
| Building form | detached or attached |
| Developable plot area | position of the building on the plot |
Assured servicing is added as a further condition. It must be legally and factually guaranteed.
Two limits can render even a fitting project impermissible. The requirements for healthy living and working conditions must be preserved, and the townscape must not be impaired.
The measure is what physically exists
This is the core of the provision and the commonest source of misunderstanding. It concerns the yardstick against which fitting in is measured.
The measure is what physically exists in the immediate surroundings, not what would be desirable, not what the preparatory land use plan envisages, and not what previously stood on the plot itself.
Several practical consequences follow.
| Consequence | What follows |
|---|---|
| The frame is set by what exists | a project moving within the range found in the surroundings fits in |
| Existing development can widen the frame | where both detached and attached forms exist in the surroundings, either may be permissible |
| The assessment looks to outward appearance | rather than to computational subtleties, such as whether an attic counts as a full storey |
How far the immediate surroundings extend
The term is not defined by fixed distances. What governs is the area on which the project has effects and which in turn shapes the project's character.
The delimitation may differ for each of the four features. For the type of use the area is frequently drawn more widely than for the developable plot area.
In practice this means the delimitation must be justified. A preliminary application naming and documenting the area relied upon is considerably more robust than one leaving it to the authority.
The decision is bound
One point frequently surprises clients and strengthens their position. It concerns the authority's room for decision.
§ 34 confers no discretion on the authority. Where the project fits on all four features, servicing is assured and the two further limits are observed, consent must be granted.
The authority therefore cannot refuse a project because it considers it undesirable in urban design terms. It can only find that the project does not fit, and that finding is reviewable.
Conversely, a municipality wishing to prevent a particular development has planning available to it and not refusal in the individual case. It cannot withhold consent by pointing to its own planning intentions.
The de facto area category
A special rule concerns the case where the surroundings correspond to one of the area categories in the land use ordinance, having developed as though a plan existed. Such an area is called a de facto area category.
Permissibility as to type of use is then assessed under the land use ordinance, including the standard and exceptional uses it provides for. The assessment corresponds in that respect to one within a local plan.
This matters for changes of use. In a de facto general residential area, the permissibility of a commercial use follows the catalogue in the ordinance rather than a free assessment of the surroundings.
How to obtain certainty
Assessing whether a project fits involves judgements that cannot be anticipated with certainty before application. That is the essential difference from a qualified local plan.
The most effective instrument against this is a preliminary application followed by a preliminary ruling. It determines bindingly whether a project is permissible in principle, before substantial design costs arise.
For site decisions in unplanned built-up areas it is almost always economic. The article on consent procedures covers the instrument.
Related articles
This article reflects the position of the rules and case law at the date of checking and serves professional orientation. It does not constitute legal advice and does not replace assessment of the individual case.