Appeal Decision 129 - Certificate of Lawful Development.

July 2010 - Code a00129

Summary of Case (appeal dismissed): 

The property is a two-storey end-of-terrace house, with an original two-storey rear projection. The main roof of the property is a butterfly roof (i.e. with a central valley running from front to rear) with raised front and side parapet walls. The application was for a proposed roof extension, which would have been located on one half of the main butterfly roof and on the roof of the original two-storey rear projection. The highest part of the proposed roof extension would have been level with the top of the front parapet wall. The submitted drawings did not state what materials would be used for the proposed roof extension, and did not state whether the proposed new side velux windows would be obscure-glazed or non-opening. 

The first key issue was whether the height of the proposed roof extension would be contrary to Class B, part B.1(a), which states that “Development is not permitted by Class B if … any part of the dwellinghouse would, as a result of the works, exceed the height of the highest part of the existing roof”. 

The Inspector stated the following: 

“Paragraph B.1(a) of Part 1 of Schedule 2 to the GPDO provides that development in the form of enlargement of a dwellinghouse consisting of an addition or alteration to its roof is permitted by Class B provided that any part of the dwellinghouse would not, as a result of the works, exceed the height of the highest part of the existing roof. The ‘existing roof’ is not defined in the GPDO so I consider it must be given its ordinary meaning. Where a roof is constructed with a central ridgeline the highest part of the roof would be where the roof tiles meet and form the ridge. It follows that where the roof is inverted, as in the appeal property, and meets centrally at its lowest point in a drainage gulley the highest point of the roof is where the tiles reach the party walls. The firewalls to either side of the roof are upward extensions of the party walls and the parapet wall at the front of the building is similarly an upward extension of the front wall of the property. I therefore consider that the parapet and the party walls are not a part of the roof structure and the appellant’s argument is flawed in this respect. To suggest that the highest part of the roof is the same as the highest part of the building would mean that Class B would permit extensions up to chimney height where the dwellinghouse had a chimney, as elsewhere in [the road] and this, in my view, is plainly wrong. 

I conclude, therefore, that the parapet wall cannot be considered as a part of the roof structure of the appeal property and that, as the proposed development would result in the upward extension of the roof beyond the highest part of the tiles forming the present roof, it would not be ‘permitted development’ by virtue of Class B of Part 1 of Schedule 2 to the GPDO.”

The second key issue was whether the lack of specification of what materials would be used for the proposed roof extension would be contrary to the condition 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”. The third key issue was whether the lack of specification as to the form of the new side velux windows would be contrary to the condition Class B, part B.2(c), which requires that “any window inserted on a wall or roof slope forming a side elevation of the dwellinghouse shall be— (i) obscure-glazed, and (ii) non-opening unless the parts of the window which can be opened are more than 1.7 metres above the floor of the room in which the window is installed.” 

The Inspector stated the following: 

“As regards other issues raised by the conditions imposed on permitted development by Class B.2, the plans provide little detail of the materials used in any exterior work and similarly no detail is given of the proposed side window. Paragraph B.2(c) of Part 1 of Schedule 2 to the GPDO provides that development is only permitted if any window inserted on a wall or roof slope forming a side elevation of the dwellinghouse shall be obscure glazed, and non-opening unless the parts of the window which can be opened are more that 1.7 metres above the floor of the room in which the window is installed. Similarly paragraph B.2(a) provides that development is only permitted if 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. 

The onus is on the appellant to provide sufficient detailed evidence or information to support his case and demonstrate that the use or operations described in the application would be lawful, if instituted or begun at the time of the application. In accordance with this burden of proof the applicant/appellant is expected to describe the proposal with sufficient clarity and precision to enable the decision-maker to understand from a written description and plans exactly what is involved in the proposal. In my opinion the appellant has not discharged this requirement. Finally, it appears from the drawings provided that the mansard roof on the rear extension (designated Area A in the drawings) fails condition B.2(b) since it would not be set back 20cm from the eaves of the original roof. 

Therefore, my overall conclusion is that the proposed roof extension, as described, would not have been lawful at the date of the application and I am satisfied that the Council’s refusal to issue an LDC in the terms described above was well-founded.” 

Main Conclusions: 

·       For a property with a pitched or hipped roof, “the highest part of the existing roof” is the main ridge-line, and does not include raised parapet walls or chimneys.
[Relevant to: “Highest Part of the … Roof”, A.1(b), C.1(b), G.1(a), H.1(b)].

·       For a property with a butterfly roof, “the highest part of the existing roof” is the line where the tiles meet the bottom of the parapet walls, and does not include raised parapet walls or chimneys.
[Relevant to: “Highest Part of the … Roof”, A.1(b), C.1(b), G.1(a), H.1(b)].

·       A certificate of lawful development should be refused if the applicant has not demonstrated full compliance with all of the conditions of the Class.
[Note: This would appear to contradict at least one other appeal decision – for further information see the entry in the “Reference Section” on “Conditions”].
[Relevant to: “Conditions”, A.3(a), A.3(b), A.3(c), B.2(a), B.2(b), B.2(c), C.2, F.1, H.2(a), H.2(b)].

·       For example, if an applicant does not specify what materials would be used for a proposed extension, then the application should be refused.
[Note: This would appear to contradict at least one other appeal decision – for further information see the entry in the “Reference Section” on “Conditions”].
[Relevant to: “Conditions”, A.3(a), A.3(b), A.3(c), B.2(a), B.2(b), B.2(c), C.2, F.1, H.2(a), H.2(b)].

·       For example, if new side windows at an upper level are not shown as obscure glazed and non-opening, then the application should be refused.
[Note: This would appear to contradict at least one other appeal decision – for further information see the entry in the “Reference Section” on “Conditions”].
[Relevant to: “Conditions”, A.3(b), B.2(c), C.2].

·       In an application for a certificate of lawfulness, the burden of proof is firmly on the applicant.
[Relevant to: "General”].

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

·       Appeal Decision Notice:
http://planningjungle.com/?s2member_file_download=a00129-Appeal-Decision-Notice.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       OS Map:
http://planningjungle.com/?s2member_file_download=a00129-OS-Map.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Existing Drawings:
http://planningjungle.com/?s2member_file_download=a00129-Existing-Drawings.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Proposed Drawings:
http://planningjungle.com/?s2member_file_download=a00129-Proposed-Drawings.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

Download documents and diagrams of useful

Permitted Development information