Appeal Decision 133 - Certificate of Lawful
This appeal decision summary and
assessment has been produced by Planning Jungle Limited. For more information, please go to www.planningjungle.com/?p=20
September 2010 - Code
Summary of Case (appeal
The property is a two-storey
house with an original two-storey rear projection. A large rear dormer has been constructed, which has involved
raising the main ridge-line. This application was submitted under section 192, and the submitted drawings appear
to show an amended rear dormer that would not involve raising the main ridge-line.
The Council’s reason for
refusal was as follows:
”The proposed dormer
window is not permitted by Class B as it breach criteria B1(a) and B2(b) of Part 1, Schedule 2 of the Town and
Country Planning (General Permitted Development) (Amendment) (No.2) (England) Order 2008.”
The first key issue was
whether the appeal should be assessed on the basis of the (hypothetical) proposed extension that is shown on the
submitted drawings, or on the basis of the (actual) existing extension that has been constructed on the
The Inspector stated the
“The application was made
and the refusal was given for a proposed development pursuant to s.192 of the 1990 Act (as amended). However,
the Officer’s Report refers to the type of application as s.191 and it states that ‘A site inspection showed the
development has been substantially completed’. The Informative on the notice of refusal indicates that the
development had been built. At my visit I noted that a rear dormer window had been built and it seems to me that
the Appellant accepts that what has been built is not reflected in the plans because he says ‘the Agent was
instructed to go ahead with the building of the rear dormer as long as we kept to the plans, which apart from
the raised ridge has been the case’. This completed development is the subject of a separate
The purpose of s.192 is
for an owner, or others, to ascertain whether specific operations would be lawful by making an application to
the local planning authority. The section provides that if the LPA are supplied with information satisfying them
that the operations described in the application would be lawful, if instituted or begun at the time of the
application, they shall issue a certificate to that effect; and in any other case they shall refuse the
application. The burden of proof is firmly on the applicant and he will have to describe the proposal with
sufficient clarity and precision to enable the LPA to understand (from a written description and plans) exactly
what is involved in the proposal.
I am therefore of the
opinion that as the application was made under s.192 I have to determine the appeal on the same basis, taking
into account the submitted drawings”.
The second key issue was
whether the proposed rear dormer would be contrary to Class B, part B.2(b), which states that “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
“The proposed rear
elevation and the section through the loft show the dormer rising straight from the rear wall of the dwelling.
There is no set back as required in B.2 (b).
Any claim for permitted
development rights must be measured against each of the elements in the Class and if any are failed then the
development is not permitted. The proposal is therefore not permitted development as it fails to comply with
condition B.2 (b).”
Where an application is
submitted under section 192 (proposed), rather than under section 191 (existing), the application should be
assessed on the basis of the (hypothetical) proposed situation that is shown on the submitted drawings,
rather than on the basis of the (actual) existing situation that has been constructed on the
[Relevant to: “Interaction
between section 191 (existing) and section 192 (proposed)”].
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
Download documents and diagrams of