Appeal Decision 235 - Certificate of Lawful Development.

April 2011 - Code a00235

Summary of Case (appeal dismissed): 

The property is a two-storey semi-detached house. The application was for a proposed single storey rear extension, a hip-to-gable roof extension, the erection of a rear dormer, and the installation of two front rooflights.  

The roof of the proposed single storey rear extension would have consisted of a pitched roof at the rear rising up to an area of flat roof next to the main house. The area of flat roof would have been more than 3m above ground level. The first key issue was whether the proposals would be contrary to Class A, part A.1(g), which states that “Development is not permitted by Class A if … the enlarged part of the dwellinghouse would be within 2 metres of the boundary of the curtilage of the dwellinghouse, and the height of the eaves of the enlarged part would exceed 3 metres”. 

The Inspector stated the following: 

“It is clear from the Technical Guidance that a flat roof has an eaves height for the purpose of applying the provisions of the Order. I am aware that the illustrations on page 11 of the Technical Guidance show the eaves height measurement being made where the flat roof meets the rear wall. However, I do not consider that the illustration means that is the only point at which the height of the eaves of a flat roof can be measured. In most situations where an extension only has a flat roof the height of the eaves will be the same at whatever point it is measured. 

In this case the roof of the extension would initially be flat and then it would become mono-pitched. If the eaves height of the extension is measured solely where the pitched roof meets the rear wall the height would be less that 3m. However, I agree with the Council that the extension has two eaves heights, namely: 

a) where the pitched roof would meet the rear wall of the extension, and 

b) secondly the top of the flat roof.

The eaves height of flat roof element would exceed 3m. Accordingly, the extension would not be permitted development as it would fail to comply with A.1 (g) of the Order.” 

It appears from the submitted drawings that the outer wall of the proposed single storey rear extension would project 3m from the rear wall of the main house, but that its eaves / roof overhang would project slightly past this line. The second key issue was whether the projection of the eaves / roof overhang by more than 3m beyond the rear wall of the original house would be contrary to Class A, part A.1(e), which states that “development is not permitted by Class A if … the enlarged part of the dwellinghouse would … extend beyond the rear wall of the original dwellinghouse by more than … 3 metres”. 

The Inspector stated the following: 

“In the light of the advice in the Communities & Local Government document entitled “Permitted Development for Householders – Technical Guidance” (the Technical Guidance) the Council agree that the depth of the extension would not extend beyond the rear wall of the original dwelling-house by more than 3m. Accordingly, the first reason for refusal no longer applies.” 

The new gable end of the proposed hip-to-gable roof extension would have contained a side window, but the submitted drawings do not give any indication as to whether this new side window would be obscure-glazed or non-opening. The third key issue was whether this would be contrary to Class B, part B.2(c), which requires that “any window inserted on a wall or roof slope forming a side elevation of the dwellinghouse shall be— (i) obscure-glazed, and (ii) non-opening unless the parts of the window which can be opened are more than 1.7 metres above the floor of the room in which the window is installed”.  

The Inspector stated the following: 

“Class B of the Order permits the enlargement of a dwelling-house consisting of an addition or alteration to the roof. The appellants understand that there is a need to comply with the condition specified at B.2 (c) of the Order. The Council accept that compliance with the condition does not have to be reflected on the application plan but would have to be complied with if the proposal was implemented. Accordingly, the third reason for refusal has been overcome.” 

Main Conclusions: 

·       Where the roof of an extension consists of a pitched roof rising up to an area of flat roof, then the height of the “eaves” is not just the lower end of the pitched roof, but also the top of the flat roof.
[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)].

·       Where the rear wall of an extension would comply with the 3m/4m rear projection limit of Class A, part A.1(e), but the eaves / guttering / soffit / fascia of the extension would project slightly past this line, then this would still be permitted development.
[Relevant to: A.1(e)].

·       A certificate of lawful development should be issued even if the applicant has not demonstrated full compliance with all of the conditions of the Class, so long as it would be possible for the conditions to be met.
[Note: This would appear to contradict at least one other appeal decision – for further information see the entry in the “Reference Section” on “Conditions”].
[Relevant to: “Conditions”, A.3(a), A.3(b), A.3(c), B.2(a), B.2(b), B.2(c), C.2, F.1, H.2(a), H.2(b)].

·       For example, if new side windows at an upper level are not shown as obscure glazed and non-opening, then a certificate should be issued because this condition could still be met. Should the development proceed without complying with a condition, it would then be open to the Council to take enforcement action against it.
[Note: This would appear to contradict at least one other appeal decision – for further information see the entry in the “Reference Section” on “Conditions”].
[Relevant to: “Conditions”, A.3(b), B.2(c), C.2].

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

·       Appeal Decision Notice:
http://planningjungle.com/?s2member_file_download=a00235-Appeal-Decision-Notice.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       OS Map:
http://planningjungle.com/?s2member_file_download=a00235-OS-Map.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Drawings:
http://planningjungle.com/?s2member_file_download=a00235-Drawings.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

Download documents and diagrams of useful

Permitted Development information