Appeal Decision 105 - Certificate of Lawful Development.
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March 2010 - Code a00105
Summary of Case (appeal
The property is a two-storey
detached house. Prior to 01/10/2008, a certificate of lawfulness was issued for a rear dormer that would have
covered the full width and height of the rear roof, with no eaves remaining. Although a dormer has been
constructed with these dimensions, the Inspector states in the appeal decision notice that the development
started after 01/10/2008, and that therefore the amended Part 1 is applicable. Furthermore, the Council states
in their report that the ground floor extension started prior to the completion of the rear dormer, resulting in
the latter exceeding the volume tolerances. This current application involved the proposed reintroduction of the
The key issue was whether the
rear dormer is contrary to Class B, part B.2(b), which states that “Development is permitted by Class B subject
to the following conditions … (b) other than in the case of a hip-to-gable enlargement, the edge of the
enlargement closest to the eaves of the original roof shall, so far as practicable, be not less than 20
centimetres from the eaves of the original roof”.
The Inspector stated the
“I now turn to the
question of the relationship of the dormer with the eaves of the building. Unfortunately the General Permitted
Development Order does not define the term “eaves”. However, in my experience it usually refers to the
overhanging or projecting part of a sloping roof, where a roof is designed with its outer edge projecting beyond
the wall below. This opinion is supported by the definitions given in technical publications dealing with such
matters. The fundamental problem in this case is that at present there are no eaves on the rear elevation of the
building, which is a three-storey vertical wall below a flat roof. Since the eaves no longer exist, I fail to
see how the 20 centimetre set back required by condition B.2(b) can be provided as there is no roof plane on
which the distance can be measured.
The appellants argue that
the dormer is over 20 centimetres from the outer edge of the former eaves, which clearly projected beyond the
face of the rear wall of the building. However, in my view such an interpretation would conflict with the aim of
the requirement, which clearly seeks that part of the sloping area of the original roof be retained when such
extensions are constructed. In my opinion the phrase “so far as practicable” is clearly intended to give some
flexibility to local planning authorities, particularly when dealing with unusual types of building.
Nevertheless, it cannot have been intended to make the requirement for a dormer to be set back wholly
discretionary, as this would effectively allow over-large dormers to be created and frustrate the aim of the
requirement. Moreover, I note that the parties accept that in this case it would be possible to erect a dormer
set back 20 centimetres from the rear wall of the building. I therefore conclude that in its present form the
dormer requires planning permission.
In reaching this decision
I have had regard to the diagram on the Planning Portal which illustrates the requirements of the General
Permitted Development Order. I consider that this drawing shows that the aim of the Order is that there should
be a significant gap between the edge of the roof and the front of the dormer. The absence of any gap would
clearly not satisfy this objective.
I now turn to the question
of whether the dormer would become permitted development if a new “eaves” was introduced in a similar position
to the former eaves. This is the matter on which the appellants sought clarification in the Lawful Development
Certificate application that is the subject of Appeal B. In my view the scheme the appellants propose could not
be regarded as the installation of eaves in the normal sense of this term but would merely be the introduction
of a decorative feature onto the rear elevation of the building. This would be physically divorced from the roof
of the dwelling, as it now exists, by a distance of some three metres and would play no part in the function of
the roof. Therefore in my opinion the proposal would not make the dormer permitted
The Inspector also concluded
that the use of white render on the rear dormer was contrary to Class B, part B.2(a) [which requires that “the
materials used in any exterior work shall be of a similar appearance to those used in the construction of the
exterior of the existing dwellinghouse”] on the basis that before the recent building works commenced the
predominant materials of the property were brick and clay tiles.
It is not possible to
comply with Class B, part B.2(b) if the original eaves have been removed.
[Relevant to: B.2(b)].
In order for a dormer extension
to comply with Class B, part B.2(b), there needs to remain a continuous strip of at least 20cm of
original roof slope below the base of the dormer. It is not possible to comply with this condition by
saying that the dormer would be set-back 20cm from the notional point where the original eaves would have
been when the latter has been removed.
[Note: This would appear to contradict
at least one other appeal decision – for further information see the entry in the “Reference Section” on
[Relevant to: B.2(b)].
Furthermore, in such a case
where a dormer doesn’t comply with Class B, part B.2(b) because the original eaves have been removed, it is
not possible to comply with this condition by reintroducing the eaves.
[Relevant to: B.2(b)].
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