Appeal Decision 185 - Certificate of Lawful Development.

December 2010 - Code a00185

Summary of Case (appeal dismissed): 

The property is a detached house, and the application was for a proposed outbuilding to the side of the house. The proposed outbuilding would have a flat roof (with small parapet walls) at height 3m, and would be more than 2m from the boundaries. 

The key issue was whether the height of the proposed outbuilding would be contrary to Class E, part E.1(e), which states that “Development is not permitted by Class E if … the height of the eaves of the building would exceed 2.5 metres”. 

The Inspector stated the following: 

“The crux of the appellant’s case concerns the interpretation of the term “eaves” and its application to the particular circumstances of the present case. He has provided several definitions, drawn from dictionaries and elsewhere, to support his view that the term “eaves” implies the underside of a roof which overhangs or extends beyond the side walls. The appellant refers to appeal decisions [March 2010 - Code a00105] and [February 2010 - Code a00100] in which the Inspectors in both cases concluded that “eaves” connoted some form of projection. 

The appellant avers that the building has been designed without incorporating an overhanging eaves. Accordingly, he argues that, in the absence of any eaves, the limitation imposed by paragraph E.1(e) has no application to the proposed structure; rather, the intention of the GPDO in its wording of paragraph E.1(d)(iii) is to enable flat-roofed outbuildings to stand 3m in height. The proposed scheme would not conflict with either of the limitations imposed by paragraph E.1(d)(i) and (ii) and would fulfil the limitation imposed by paragraph E.1(d)(iii) inasmuch as it would not exceed 3m in height above ground level. Hence, it is the appellant’s case that the scheme would be permitted development. 

The Council disagrees. The Council does not accept that, necessarily, the “eaves” would have to comprise an overhang of the roof; although the Council has not identified specific dictionaries, it is the Council’s belief that definitions of “eaves” include those which would comprise the edge of the roof. In support of its stance, the Council relies on national advice contained in “Permitted Development for Householders: Technical Guidance” published by the Department in August 2010 (the ‘Technical Guide’). The Council avers that, on the basis of the advice in the Technical Guidance, the eaves height of the proposed building would be about 2.8m above ground level and would fail the limitation in paragraph E.1(e). 

Interpretation of the law as contained in the 1990 Act (as amended) and the GPDO is, ultimately, a matter for the Courts and no evidence has been adduced to indicate that the matter presently in dispute would have the benefit of judicial authority. As far as I am aware, that term “eaves” is neither defined in the 1990 Act (as amended), nor in the GPDO, nor in any other subordinate legislation. Hence, the term would often be given its ordinary meaning. However, the Technical Guidance, as national advice, would be an important material consideration. 

In respect of Class E and, in particular, in respect of the limitations of paragraph E.1(e), the Technical Guide states (at page 42): 

“The eaves of a building will be the point where the lowest point of a roof slope, or a flat roof meets the outside wall of a building” (emphasis added). The Guidance on Class A above includes examples and further guidance”. 

Turning therefore to the guidance on Class A contained in the Technical Guidance (at pages 9-31), and in particular, advice in respect of a limitation set out in paragraph A.1(c) (at page 11), the definition of eaves above is repeated and furthermore, it is stated and illustrated by diagrams:- 

“The height of the eaves will be measured from the natural ground level at the base of the external wall of the extension to the point where the external wall would meet (if projected upwards) the upper surface of the roof slope. Parapet walls and overhanging parts of eaves should not be included in any calculation of eaves height” (emphasis as published); 

and continues: 

“The following example shows the side view of an extension with a pitched roof”; 

there then follows a notated diagram. The text continues: 

“Where there is a flat roof, a similar approach should be taken for measuring eaves”. 

In the diagram that subsequently follows that text, the notation states:- 

“Eaves height is measured from the ground level at the base of the outside wall to the point where that wall would meet the upper surface of the flat roof – the overhang and the parapet wall should be ignored for the purpose of measurement.” 

The Introduction contained in the Technical Guidance states, among other matters, that: 

“The guidance … gives an explanation of the rules on permitted development for householders, what they mean and how they should be applied in particular circumstances. Diagrams have been included for illustrative purposes only….Given the very substantial variations in the design of individual houses, this guide cannot cover all possible situations that may arise…” 

To some extent, the reasoning drawn from the Technical Guidance would fly-in-the- face of many of the definitions of “eaves” as ordinarily and technically understood inasmuch as, in the present case, there would be no overhang of the roof and the external walls. Arguably, the present case would be one of those situations which the Technical Guidance does not address. 

However, it can be distilled from the Technical Guidance that, for the purposes of Class E, an “eaves” would be “…the point where the … flat roof meets the outside wall of the building…” and would be “…measured from the ground level at the base of the outside wall to the point where that wall would meet the upper surface of the flat roof”. 

The diagrams in support of Class A in the Technical Guidance illustrate a projection of the roof over and beyond the external wall of the building. However, the meeting of the roof with the inside of an upstand or parapet of that external wall would be sufficient to provide the criterion – that is, the point where a flat roof meets the outside wall of the building – to establish the height of the “eaves”. Nothing would indicate that, in order to ascertain such point, the structure comprising that of the flat roof would need to oversail the external wall itself. Thus, as a matter of fact and degree, an “eaves” would subsist for the purposes of the GPDO, whether or not it would overhang the external wall and whether or not it would have any manifestation as such on the external appearance of the wall. 

Such conclusion would not accord with those of the Inspectors in the appeal decisions in Richmond upon Thames LBC and Ealing LBC respectively. But the determinations in those cases pre-date publication of the Technical Guidance, hence those decisions now carry less weight as a consequence; much greater weight would be attributable to the advice in the Technical Guidance as a material consideration. 

Accordingly, I am compelled to the view that, contrary to the appellant’s belief, for the purposes of the GPDO, the proposed building would possess an “eaves”, the height of which above ground level would exceed the limitation contained in paragraph E.1(e) of Class E. In these circumstances, planning permission would not be granted for the proposed development by virtue of the provisions of Article 3(1) of the GPDO”. 

Main Conclusions: 

·       The term “eaves” does apply to the edge of a flat roof (note: in this particular case, the flat roof would not have an overhang that would project beyond the line of the walls).
[Note: This would appear to contradict at least one other appeal decision – for further information see the entry in the “Reference Section” on “Eaves”].
[Relevant to: “Eaves”, A.1(c), A.1(g), E.1(e)].

·       The height of the eaves should be measured from the ground level at the base of the outside wall to the point where this wall would meet (if projected upwards) the upper surface of the roof.
[Relevant to: “Eaves”, A.1(g), E.1(e)].

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

·       Appeal Decision Notice:
http://planningjungle.com/?s2member_file_download=a00185-Appeal-Decision-Notice.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Proposed Block Plan:
http://planningjungle.com/?s2member_file_download=a00185-Proposed-Block-Plan.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Proposed Front and Rear Elevations:
http://planningjungle.com/?s2member_file_download=a00185-Proposed-Front-and-Rear-Elevations.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Proposed Side Elevation:
http://planningjungle.com/?s2member_file_download=a00185-Proposed-Side-Elevation.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

Download documents and diagrams of useful

Permitted Development information