Permitted Development England
How to build a
home extension without Planning Permission using your PD rights - Oct. 1st
2008
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Appeal Decision 208 - Certificate of Lawful Development.
Summary of Case (appeal dismissed):
The property is a detached house. In the rear garden of the property, an outbuilding has previously been erected. This outbuilding is situated within 2m of the boundaries, and has a pitched roof with ridge-line at height 4.5m. It appears that the erection of this outbuilding began prior to 01/10/2008, and that this outbuilding had been completed some time prior to this current application (which was submitted in February 2010). This current application proposed to alter the existing outbuilding, so that it would still be within 2m of the boundaries but would have a pitched roof with ridge-line at height 3.5m.
The appellant argued that the current application should be assessed against the previous version of Part 1, against which the height of the altered outbuilding would comply. The Council argued that the current application should be assessed against the amended version of Part 1, against which the height of the altered outbuilding would be contrary.
The Inspector stated the following:
“The application seeks an LDC for a proposed reduction in ridge height to 3.5m with the upper surface of the roof at the eaves being some 2.7m above ground level. By the time of the site visit the works to reduce the roof height had been completed in accordance with the proposal.
At the time of the original construction, an outbuilding with a pitched roof up to 4m high may have been permitted development under the Town and Country Planning (General Permitted Development) Order 1995 (GPDO) as then in force.
However, applications under section 192 of the Act relate to the lawfulness of the proposed use or development at the time of the application. Schedule 2, Class E of the GPDO relates to the provision within the curtilage of a dwellinghouse of any building, enclosure or container required for a purpose incidental to the enjoyment of the dwellinghouse.
Class E of the GPDO was amended by the Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2008/2362 Schedule 1, paragraph 1. The GPDO, as amended, came into force on 1 October 2008 and, therefore, that is the version which must be considered in determining this appeal.
The GPDO, as amended, sets out a number of circumstances where development is not permitted by Class E. These include if the height of the building, enclosure or container would exceed 2.5m in the case of a building, enclosure or container within 2 metres of the boundary of the curtilage of the dwellinghouse.
To the one side the outbuilding is some 0.8m from the boundary and to the other some 1.05m from the boundary. The surface of the roof is some 2.7m high rising to 3.5m at the ridge. The outbuilding is within 2m of both boundaries and its height is substantially in excess of 2.5m. The outbuilding is, therefore, not permitted development under Class E of the GPDO as amended and in force at the time of the application. It is consequently not a lawful use or development.”
[Note: In my opinion, if the outbuilding had been begun prior to 01/10/2008 and at the time of this application the outbuilding had never been substantially completed, then it would still have been possible to complete the outbuilding in accordance with the previous version of Part 1, and a certificate under section 192 (proposed) could have been issued to confirm the lawfulness of such a proposed completion. Indeed, two previous appeal decisions (January 2010 - Code a00086 and December 2010 - Code a00166) have confirmed that where works were begun prior to 01/10/2008 but substantially completed on or after 01/10/2008, then such works should still be assessed against the previous version of Part 1.
In my opinion, a key point in this application was that the outbuilding had previously been substantially completed (i.e. with height 4.5m), albeit unlawfully. As such, this application to alter the outbuilding (i.e. to height 3.5m) represented a new building operation, which in itself would have been begun after 01/10/2008, and therefore in my opinion it was correct for the application to be assessed against the amended version of Part 1].
Main Conclusions:
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In the case where building works
were begun prior to 01/10/2008 and have already been substantially completed, albeit unlawfully, it is
not possible to now further alter the building under the limitations of the previous version of Part
1.
Links to the “Appeal Decision Notice” and other associated documents (e.g. drawings, etc):
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Appeal Decision
Notice:
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OS Map:
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Drawings:
Download documents and diagrams of useful Permitted Development information
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