Appeal Decision 214 - Certificate of Lawful
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February 2011 - Code a00214
Summary of Case (appeal
The property is a detached
house, situated to the south-east of the road, and situated within a conservation area. The principal elevation
of the house faces north-west and fronts the road. The application was for a proposed outbuilding, which would
be situated to the east of the main house, such that it would be situated behind the line of the rear elevation
(and outside of the line of the side elevation).
The key issue was whether the
proposed outbuildings would be contrary to Class E, part E.3, which states that “In the case of any land within
the curtilage of the dwellinghouse which is article 1(5) land, development is not permitted by Class E if any
part of the building … would be situated on land between a wall forming a side elevation of the dwellinghouse
and the boundary of the curtilage of the dwellinghouse”.
The Inspector stated the
“I saw nothing when
visiting the site to suggest any inaccuracy in the application plans. They show the proposed building set behind
the rear building line of the house but also to the north east of the wall forming its northern side elevation.
The issue therefore is whether, for the purposes of paragraph E.3 and as a question of fact, any part of the
building would be situated on land between that elevation and “the boundary of the
Since the Council’s
decision, technical guidance on the interpretation of paragraph E.3 and other provisions has been issued by the
Department of Communities and Local Government. In the pictorial example given at page 44 of the guidance, it
is said that permission is not granted for buildings (etc) within the areas shaded to either side of a house,
but with lines drawn across the site along those of the front and rear elevations. It follows that the
Secretary of State’s view is that permission is granted for buildings in a position such as this one, subject to
compliance with other relevant provisions. In passing, a building (etc) set forward of the principal elevation
would be caught by paragraph E.1(b) whether or not on Article 1(5) land.
In an earlier appeal,
dismissed before the Department’s guidance was issued, the word “between” was taken to mean the “interval or
area that is bounded by two or more points or lines” [Note: The “earlier appeal” refers
to December 2009 - Code
a00054, although this earlier appeal was actually
allowed]. The Council in this case
cite a further definition as “at a point or in a region intermediate to two other points in space.” On that
basis, they argue that the building would be situated on land between the side elevation and the boundary, since
the latter is not differentiated or qualified in any way, for example by including words such as “opposite” or
“side”. Rather, it is treated as a single entity.
The Secretary of State’s
view of the meaning of the provision however is clear from the technical guidance. That must also therefore be
presumed to be its intended meaning. In the absence of any judicial authority to the contrary, I do not consider
it open to me to hold otherwise, notwithstanding that the provision relates to Article 1(5) land and that
development permitted by it may be widely visible in the public domain. Since no part of the building would be
within the area equivalent to that shaded in the pictorial example referred to above, it would not, for the
purposes of paragraph E.3 and as a question of fact, be situated on land between that elevation and “the
boundary of the curtilage.” It follows that the Council’s decision was not justified and I shall allow the
Class E, part E.3 only
prevents outbuildings from being within the area that is directly in between the side wall of the
house and the side boundary. In other words, this limitation does not prevent outbuildings from being
within the additional area that can be covered if considering the imaginary line of the side wall when
extended forwards and rearwards.
[Relevant to: E.3].
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