Appeal Decision 32 - Certificate of Lawful Development.

October 2009 - Code a00032

Summary of Case (appeal dismissed): 

The property is a two-storey detached house. Ditton Park Road runs south-west to north-east, and the property is to the south-east side of the road. The property is aligned with the road, such that its elevations face north-west, north-east, south-east, and south-west. To the south-west of the property is the garden, and to the south-east is a gravelled turning and parking area enclosed on two sides by garages and outbuildings, followed by an area of mature woodland (outside the application site) then Riding Court Road which runs alongside the M4. 

The application was for a proposed two-storey extension to the south-east elevation, and a proposed single storey extension to the south-west elevation. Viewing the drawings (see link below) is recommended, if only to see the size of the proposed two-storey extension, which would have approximately tripled the footprint and volume of the house. 

The Council refused the application firstly on the basis that the proposed two-storey extension would extend onto land which beyond the curtilage of the original dwellinghouse, secondly on the basis that if the south-east elevation is the principal elevation then the proposed two-storey extension would extend beyond a wall which fronts a highway (Riding Court Road) and forms the principal elevation, and thirdly on the basis that if the north-west elevation (fronting Ditton Park Road) is the principal elevation then the proposed two-storey extension would extend beyond the rear wall of the original dwellinghouse by more than 3m. 

With regards to the issue of the curtilage, the Inspector concluded that, on the balance of probability, the gravelled turning and parking area has been used as part of the curtilage of the dwelling for over 10 years, at 

least to the extent where the two storey extension would be located. 

With regards to the issue of the principal elevation, the Inspector concluded that the south-east elevation, which contains the main windows of the property, along with the entrance door and porch, is the principal elevation. He noted that the principal elevation does not front a highway (on the basis that Riding Court Road is too far removed to be regarded as fronting), and therefore concluded that the proposed two-storey extension is not excluded by virtue of Class A, part A.1(d). 

However, the Inspector then stated the following: 

“Although, I have found that the south-east facing elevation is the principal elevation in terms of the character and appearance of the building, as a matter of fact and degree, I consider that the wall to this elevation is also technically and historically the rear wall of the original dwellinghouse in terms of the physical relationship to the adjacent Ditton Park Road. I see no reason why these different characteristics cannot apply to the same wall/elevation. 

Accordingly, the proposed two storey extension would extend beyond this wall by more than 3 metres and on this basis the proposal is not permitted development.” 

Hence, according to this appeal decision, it is possible for one elevation to be “the principal elevation” and “the rear wall of the original dwellinghouse”. An extension from such an elevation will be subject not only to those limitations relating to “the principal elevation” but also to those limitations relating to “the rear wall of the original dwellinghouse”. 

[Note: In my opinion, many people are likely to be quite surprised at the above conclusion, and some people may find it a bit “contrived”. After the amended Part 1 came into force, it was pointed out to CLG that for a property where the principal elevation did not front a highway, the legislation did not appear to contain any meaningful restrictions as to the size of a front extension. Indeed, in answer to this criticism, the “DCLG - Informal Views from Communities and Local Government” (Dec 2008, updated Jan 2009, superseded Aug 2010) stated the following, which only served to further indicate that this was indeed the case: 

“Development to a principal elevation that does not front a highway would be subject to the eaves height limit and the overall 50% limit on development within the curtilage.” 

The application subject of this appeal, which was for an extension that would have approximately tripled the footprint and volume of the house, is an example of the extreme types of extensions that could potentially be permitted by this omission in the legislation, noting that such extensions would even be allowed in Conservation Areas, Green Belts, and Areas of Outstanding Natural Beauty. Although the Inspector found this particular case to be not permitted development, some people may find the reason given by the Inspector to be quite “contrived”.

Furthermore, this appeal decision unfortunately raises more questions than it answers. Previously many people have probably assumed that, although it can sometimes be difficult to work out which elevation is “the principal elevation”, at least once this has been worked out it is then clear which elevations are the side elevations (i.e. perpendicular to the principal elevation) and which elevation is the rear elevation (i.e. opposite the rear elevation). This appeal decision raises various questions. If “rear” walls and “side” walls are not necessarily characterised by being opposite and perpendicular to the principal elevation, then what exactly are they characterised by … ? Can “the principal elevation” also be “a side elevation” … ? Can “a side elevation” also be “the rear wall of the original dwellinghouse” … ? Can one single wall even be all three … ?] 

Main Conclusions: 

·       This appeal decision provides an example of the types of factors that should be taken into consideration when determining which elevation is “the principal elevation”.
[Relevant to: “Principal Elevation”, A.1(d), B.1(b), E.1(b), F.1, G.1(b)].

·       According to this appeal decision, it is possible for one elevation to be “the principal elevation” and “the rear wall of the original dwellinghouse”. An extension from such an elevation will be subject not only to those limitations relating to “the principal elevation” but also to those limitations relating to “the rear wall of the original dwellinghouse”
[Note: Some people might find the above conclusion a bit “contrived”]
[Relevant to: “Principal Elevation”, A.1(d), B.1(b), E.1(b), F.1, G.1(b)].

·       The “principal elevation” is not necessarily the elevation that fronts a highway.
[Relevant to: “Principal Elevation”, A.1(d), B.1(b), E.1(b), F.1, G.1(b)].

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

·       Appeal Decision Notice:
http://planningjungle.com/?s2member_file_download=a00032-Appeal-Decision-Notice.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Drawings:
http://planningjungle.com/?s2member_file_download=a00032-Drawings.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Aerial Photo:
http://planningjungle.com/?s2member_file_download=a00032-Aerial-Photo.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Application Form and Supporting Legal Argument:
http://planningjungle.com/?s2member_file_download=a00032-Application-Form-and-Supporting-Legal-Argument.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Council’s Decision Notice:
http://planningjungle.com/?s2member_file_download=a00032-Councils-Decision-Notice.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

Download documents and diagrams of useful

Permitted Development information