Appeal Decision 140 - Certificate of Lawful
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September 2010 - Code
Summary of Case (appeal
The property is a
three-storey mid-terrace house. The submitted application form for this certificate of lawfulness gave the
following “Description of Proposal”:
“Replacement of windows to
rear elevation of annex including formation of new windows”.
The differences between the
submitted “Section DD – existing” and “Section DD – proposed” were as follows:
Installation of sliding windows (with handrails)
on the rear elevation at ground, first, and second floor levels.
Erection of a single storey side extension, with
the annotation “Side extension as approval 2008/01177/FUL”.
Excavation of a basement extension, with the
annotation “Basement extension as approval 2008/01177/FUL and subject to further recently submitted planning
The key issue was whether a
certificate of lawfulness could be issued for the proposed new windows on the basis of the above drawings. The
Council stated that they requested the re-submission of an amended drawing without the
The Inspector stated the
following (see Costs Decision):
“In the Council’s e-mail
of 25 September 2009 it was stated that the application for the certificate of lawfulness included the proposed
drawings contained in the planning application and could not be determined until the planning application had
been determined. By a subsequent letter dated 9 November 2009, the appellant sought an explanation of why the
certificate of lawfulness could not be signed off as it was not related to the planning application for the
basement. There is no evidence of any response to this letter by the Council.
In their formal response
to the costs application the Council advise that they do not dispute that the development for which the
certificate was sought was lawful. They state that they had simply not determined the application because of an
‘inaccuracy’ on the drawings submitted. However, the matter of concern about the drawings related to the
basement, which, as the Council accept, was not the subject of the application.
Despite the Council’s
expressed concern about misinterpretation if the drawings submitted with the application were approved and read
separately from the certificate, it is clear from the annotation on the drawings that the matters to which they
relate concern ‘permitted development’. Any stamp of approval could be expected to carry a Council reference
number relating to the application for the certificate of lawfulness. This would make it clear, in the unlikely
scenario that the drawings were read separately, that they related to the certificate. In any event, an approved
plan, without an accompanying planning permission or certificate, would not, of itself, provide the necessary
evidence that planning permission existed or that lawful development had been established.
Taking the above matters
together, I conclude that there were no substantive reasons to justify delaying the issue of the
Where a submitted application
form states that certain works are being applied for, and the proposed drawings show additional works with
annotations indicating that they are not part of the application, then the application should be determined
without being affected by the additional works.
[Relevant to: “General”].
Links to the “Appeal Decision
Notice” and other associated documents (e.g. drawings, etc):
· Appeal Decision
· Costs Decision
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