Appeal Decision 31 - Certificate of Lawful Development.

October 2009 - Code a00031  

Summary of Case (appeal dismissed): 

The property is a semi-detached house.  The application was for an existing outbuilding, which is located towards the end of the rear garden, at a distance of 0.5m from the side boundaries, and with a maximum height of 4m. 

The Inspector noted that the application form stated that the outbuilding was “substantially completed” on 01/12/2009, but that no information had been provided by the applicant as to the date that the outbuilding was “commenced”.  The Inspector therefore assessed the outbuilding against amended Part 1, and concluded that it is not permitted development because it is within 2 metres of the boundary of the curtilage and it exceeds 2.5m in height (Class E, part E.1(d)). 

The Inspector also stated the following: 

“The burden of proof in an LDC application is on the applicant. In this case, it would have been necessary to show that the building was commenced before the revisions to the GPDO came into effect. In the absence of any evidence relating to the date of commencement of the building works, I conclude that the Council’s decision to refuse to grant a Certificate was well-founded”. 

The above paragraph implies that where an application is received (on or after 01/10/2008) for existing works that were begun prior to 01/10/2008, but which were substantially completed on or after 01/10/2008, then the existing works should be assessed against the previous Part 1 of the GPDO. 

[Note: In my opinion, this situation highlights a problem with the standardised 1APP form for an “Application for a Lawful Development Certificate for an Existing use or operation”, as the form only asks the applicant for the date when the building works were “substantially completed”.  If this date is given as prior to 01/10/2008, then it is clear that the works were begun prior to 01/10/2008, and therefore should be assessed against the previous Part 1.  However, if this date is given as on or after 01/10/2008, then it is not clear whether the works were begun prior to 01/10/2008, and therefore should be assessed against the previous Part 1, or the works were begun on or after 01/10/2008, and therefore should be assessed against the amended Part 1]. 

Main Conclusions: 

·       This appeal decision implies that where an application is received (on or after 01/10/2008) for existing works that were begun prior to 01/10/2008, but which were substantially completed on or after 01/10/2008, then these existing works should be assessed against the previous Part 1 of the GPDO.
[Relevant to: “Applications received on or after 01/10/2008 for works that were begun prior to 01/10/2008”]. 

·       In an application for a certificate of lawfulness, the burden of proof is firmly on the applicant.
[Relevant to: "General”]. 

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

·       Appeal Decision Notice:
http://planningjungle.com/?s2member_file_download=a00031-Appeal-Decision-Notice.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Drawings:
http://planningjungle.com/?s2member_file_download=a00031-Drawings.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Application Form:
http://planningjungle.com/?s2member_file_download=a00031-Application-Form.pdf&s2member_skip_confirmation&s2member_file_inline=yes