Appeal Decision 239 - Certificate of Lawful
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May 2011 - Code a00239
Summary of Case (mixed
The property is a detached
house, and the application was for a proposed outbuilding in the rear garden. The proposed outbuilding would be
located at least 2m from the boundaries, albeit as a result of a change in the boundary line that was also
proposed by this application. The proposed outbuilding would have a crown type roof, with a pitch on either side
and a flat area on top (see drawings). The flat roof would be at height 3.95m.
The key issue was whether the
proposed outbuilding would be contrary to Class E, part E.1(d), which states that “Development is not permitted
by Class E if … the height of the building, enclosure or container would exceed … (i) 4 metres in the case of a
building with a dual-pitched roof, (ii) 2.5 metres in the case of a building, enclosure or container within 2
metres of the boundary of the curtilage of the dwellinghouse, or (iii) 3 metres in any other
The Inspector stated the
“The central question is
whether a roof in which two roof slopes are divided by a flat-roofed element can, for purposes of the GPDO, be
described as a dual-pitched roof. Both parties refer to a previous appeal decision (the “Penmarric” decision)
which dealt with the definition of a dual-pitched roof in the context of a gambrel roof (a roof with two roof
slopes at different angles rising to an apex along the ridge). The Inspector determined that such a roof was not
dual-pitched and so, under E.1 of Class E, a height limitation of 3m applied, not 4m.
The decision does not
amount to “case law” as the Council claims because its conclusions have not been tested in the Courts.
Nevertheless, it is of relevance to the appeal before me, as a decision that dealt with what might be meant by
“dual-pitched roof” as applied to a building for which permitted development rights under Class E of Part 1 were
claimed. It is a material consideration to which I attach significant weight.
The appellant argues that
a roof with two roof slopes joined by a flat-roofed element could still be defined as dual-pitched. However, I
consider that it is implicit when the term is given its ordinary meaning in everyday language that it refers to
a roof with two roof slopes which meet at an apex which forms a single ridge line. There is no definition of the
term for purposes of the GPDO which indicates an alternative view. A roof which has side slopes which are
divided by a flat roofed element is termed a crown roof, which is a different type of roof form. It is
stretching the bounds of everyday language to an unacceptable extent to refer to it as a dual-pitched
The Government’s technical
guidance for householders on the changes to Part 1 introduced in October 2008 is referred to in the Penmarric
decision. On p42, it is explained that the 4m height limitation should also be applied to buildings which have
hipped roofs. That these are singled out as a variant of “dual-pitched” indicates that what the legislators had
in mind was roofs with roof slopes which meet at an apex. This does not include roof slopes with a
flatroofed element. The Government could have explained at that juncture that a crown roof could also, in view
of the fact that it has two roof slopes, be defined as dual-pitched but it did not do so.
The underlying logic of
the exception made for hipped roofs is that a higher height limit of 4m is intended to apply to roof forms with
a less substantial roof mass. By contrast, a gambrel roof or a crown roof in likely to result in a greater
presence of roof mass. The building would have a pronounced flat roofed element. The GPDO sets a lower
height limit of 3m for such roofs, which would be exceeded by the proposed height of 3.95m. That the Council may
have come to a decision more in line with the appellant’s view on a similar proposal is something to which I
attach little weight given that it concedes that the Penmarric decision and technical guidance have been issued
in the interim.
Accordingly, I conclude
that the proposal would not be lawful as it would exceed the limitations in E.1 whether or not the fence
was re-aligned. I do not need to consider whether the enclosure of land by the fence might form part of the
curtilage of the appeal dwelling and there is no proposal for a material change of use of the land before me.
The Council’s decision to refuse to grant a LDC was well-founded and I conclude that the appeal should fail in
so far as it concerns this element. I shall exercise the powers transferred to me in section 195(3) of the 1990
The phrase “dual-pitched roof”
does not apply to an outbuilding with a mansard / crown type roof (i.e. either a roof with
shallow pitches in the centre and steeper pitches at the sides, or a roof with a flat area in the centre and
pitches at the sides).
[Note: This would appear to contradict
at least one other appeal decision – for further information see the entry in the “Reference Section” on
[Relevant to: E.1(d)].
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Decision Notice” and other associated documents (e.g. drawings, etc):
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