Appeal Decision 127 - Certificate of Lawful Development.

July 2010 - Code a00127

Summary of Case (appeal allowed): 

The property is a semi-detached house, and the application was for a proposed outbuilding at the end of the rear garden. The proposed outbuilding would have had a ridge-line at height 4m, with a pitched roof down each side, a gable end at the front, and a hipped end at the rear. The proposed outbuilding would have been located within 0.5m of the rear and side boundaries, and its roof slopes have been designed such that those parts of the outbuilding within 2m of the boundaries would have had height no higher than 2.5m, whilst those parts of the outbuilding further than 2m from the boundaries would have had height greater than 2.5m. All of these heights given above are specified on the submitted drawings to be as measured above “average” ground level. Due to the slope of the ground level (rising towards the rear), the height of the ridge-line at the front gable end would have been approx 4.7m above the ground level at that point. 

The key issue was whether the proposed outbuilding would be contrary to Class E, part E.1(d), which states that “Development is not permitted by Class E if … the height of the building, enclosure or container would exceed … (i) 4 metres in the case of a building with a dual-pitched roof, (ii) 2.5 metres in the case of a building, enclosure or container within 2 metres of the boundary of the curtilage of the dwellinghouse, or (iii) 3 metres in any other case”. 

The Inspector stated the following: 

“The only reason given for refusal is that the structure would exceed 4m in height, that being the limit set for a building with a dual-pitched roof by paragraph E.1(d)(i). There is no doubt, as I saw, that the garden rises gently away from the house. According to the Council’s statement, the building “would appear to be only 4m in height in (sic) from the ground level on the rear and side elevations”. Their refusal however is based on it being 4.7m in 

height at the front of the building, that is, on its eastern side. 

Neither party had referred in their statements to Article 1(3) of the Order. I therefore gave them the opportunity to comment on it before reaching my decision. It provides as follows:

 

Unless the context otherwise requires, any reference in this Order to the height of a building or of plant or machinery shall be construed as a reference to its height when measured from ground level; and for the purposes of this paragraph “ground level” means the level of the surface of the ground immediately adjacent to the building or plant or machinery in question or, where the level of the surface of the ground on which it is situated or is to be situated is not uniform, the level of the highest part of the surface of the ground adjacent to it. 

The application plans show the building set in roughly 0.5m from the side and rear boundaries, with the ground level at its highest next to the rear wall. Undoubtedly levels around the site of the building, around the property and in neighbouring properties vary but it is the “level of the highest part of the surface of the ground adjacent to” the building against which the proposal has to be assessed. 

Despite their earlier statement, the Council have now raised an entirely new point, that the “slope upwards appears to be artificially created and when looking forward no. 60 … the land levels appears (sic) much lower and this is not reflected in any of the submitted plans”. They rely on 4 photographs of the site and adjoining land in support of this assertion. 

The measurement should be taken from the natural ground level but as far as I was able to see, it continues to rise beyond the rear boundary and as above, varies elsewhere. There is however nothing either from what I saw or in the Council’s photographs to lead me to believe that the plans of the site are inaccurate nor that the ground levels shown on them have been raised artificially. The onus of proof may lie with the Appellant but where a series of professionally produced plans has been presented, more is needed to rebut them than a largely speculative assertion raised only in response to a major flaw in the Council’s original case. 

I therefore find, on the evidence before me, that the building would not exceed the 4m height limit when assessed in accordance with Article 1(3), nor that it would breach any of the other provisions of paragraphs E.1-E.3. I shall therefore allow the appeal. It hardly needs saying however that if the building as erected is found to exceed those provisions it may be liable to enforcement action.” 

Although not specifically addressed by the Inspector, the fact that this appeal was allowed implies that where parts of a proposed outbuilding are within 2m of a boundary, the 2.5m height limit applies only to those parts within 2m of the boundary. 

Although not specifically addressed by the Inspector, the fact that this appeal was allowed implies that the phrase “dual-pitched roof” applies not just to a roof with a ridge-line with a pitched roof on either side and gable ends (i.e. where the roof has 2 slopes), but also in the case where one or both of the ends are hipped ends (i.e. where the roof has 3 or 4 slopes). 

Main Conclusions: 

·       The height of a structure should be measured from the level of the highest part of the surface of the ground adjacent to the structure.
[Relevant to: “Height”, A.1(b), A.1(c), A.1(e), A.1(g), A.1(h), B.1(a), E.1(d), E.1(e), G.1(a), H.1(d), I].

·       Furthermore, when measuring the height of a structure, “ground level" should be taken to be natural ground level, and therefore excludes the level of any ground that has been artificially raised or lowered.
[Relevant to: “Height”, A.1(b), A.1(c), A.1(e), A.1(g), A.1(h), B.1(a), E.1(d), E.1(e), G.1(a), H.1(d), I].

 

·       Where parts of a proposed outbuilding are within 2m of a boundary, the 2.5m height limit applies only to those parts within 2m of the boundary.
[Note: This would appear to contradict at least one other appeal decision – for further information see the entry in the “Reference Section” on “E.1(d)”]
[Relevant to: A.1(g), E.1(d)].

·       The phrase “dual-pitched roof” applies not just to a roof with a ridge-line with a pitched roof on either side and gable ends (i.e. where the roof has 2 slopes), but also in the case where one or both of the ends are hipped ends (i.e. where the roof has 3 or 4 slopes).
[Relevant to: E.1(d)].

Links to the “Appeal Decision Notice” and other associated documents (e.g. drawings, etc): 

·       Appeal Decision Notice:
http://planningjungle.com/?s2member_file_download=a00127-Appeal-Decision-Notice.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Proposed Floor Plan:
http://planningjungle.com/?s2member_file_download=a00127-Proposed-Floor-Plan.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       South and North Elevations:
http://planningjungle.com/?s2member_file_download=a00127-South-and-North-Elevations.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       West and East Elevations:
http://planningjungle.com/?s2member_file_download=a00127-West-and-East-Elevations.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Sections:
http://planningjungle.com/?s2member_file_download=a00127-Sections.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

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Permitted Development information