Appeal Decision 149 - Certificate of Lawful Development.

November 2010 - Code a00149

Summary of Case (appeal dismissed): 

The property is a very large two-storey detached house, which has an existing two-storey side extension. Both the main house and the existing extension each has a roof with pitched sides and a flat top, and the flat top of the extension is at a lower level than the flat top of the main house. The application was for the proposed enlargement of the roof of the existing extension, which would have resulted in the flat top of its roof being raised to the same level as the flat top of the main house. 

The key issue was whether the proposed enlargement of the roof would be contrary to Class B, part B.1(c), which states that “Development is not permitted by Class B if … the cubic content of the resulting roof space would exceed the cubic content of the original roof space by more than— (i) 40 cubic metres in the case of a terrace house, or (ii) 50 cubic metres in any other case”. 

In relation to whether the volume of the existing roof of the two-storey side extension should count towards the 50m3 limit, the Inspector stated the following: 

“The two-storey side extension to the house was built following the grant of planning permission in 1998. This included the flat-topped hipped roof, which must itself be seen as an addition to the original roof. It follows that the entire volume of the extension roof must be taken into account in assessing whether the proposed addition falls within the 50 cubic metre volume limit.” 

In relation to a dispute between the Council and the appellant as to the proposed increase in the height of the flat top, the Inspector stated the following: 

“In relation to an application made under Section 192 of the Act, sub-section (2) states that if the Local Planning Authority are provided with information satisfying them that the use or operations described in the application would be lawful if begun at the time of the application, they shall issue a certificate; and in any other case they shall refuse the application. Furthermore, paragraph 8.26 to Annex 8 of Circular 10/974 makes clear that in making a Section 192 application the burden of proof is firmly on the applicant. He will have to describe the proposal with sufficient clarity and precision to enable the Local Planning Authority to understand (from a written description and plans) exactly what is involved in the proposal; and to submit whatever supporting information or legal submission he wishes to make to satisfy the Authority that a LDC should be granted. 

In this case, the appellant submitted drawings at a scale of 1:100 that show no relevant dimensions. The Council had apparently been informed that the intention was to raise the height of the roof by 1.14 metres. However, their calculations had taken account of the discrepancy in scale discussed above. It is not realistic to expect accurate dimensions to be taken from drawings of the scale provided, and in any case it would have been possible to provide accurate site dimensions. In my view it was not possible for the increase in volume to be accurately assessed on the basis of the information provided with the application, which lacked the degree of precision that might reasonably be expected”. 

Main Conclusions: 

·       Where there is an existing extension with a roof that joins onto the roof of the main house, then this will reduce the volume allowance that remains for roof extensions under Class B, part B.1(c).
[Relevant to: “Interaction between Class A, Class B, and Class C”, Class A, A.1(i), Class B, B.1(c)].

·       Furthermore, even if the roof of the existing extension doesn’t contain any dormers / rooflights / habitable rooms / etc, this will still reduce the volume allowance that remains for roof extensions under Class B, part B.1(c).
[Relevant to: “Interaction between Class A, Class B, and Class C”, Class A, A.1(i), Class B, B.1(c)].

·       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=a00149-Appeal-Decision-Notice.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       OS Map:
http://planningjungle.com/?s2member_file_download=a00149-OS-Map.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Existing Elevations:
http://planningjungle.com/?s2member_file_download=a00149-Existing-Elevations.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Proposed Elevations:
http://planningjungle.com/?s2member_file_download=a00149-Proposed-Elevations.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

Download documents and diagrams of useful

Permitted Development information