Appeal Decision 74 - Certificate of Lawful Development.

January 2010 - Code a00074

Summary of Case (appeal dismissed): 

The property is a semi-detached house, and the application was for a proposed hip-to-gable roof extension and a rear dormer. The new gable end would have included a side window at second floor level, and on the submitted drawings this window was annotated as “new windows to match existing”. 

The key issue was whether the proposed new side window would be contrary to Class B, part B.2(c), which states the following:

“Development is permitted by Class B subject to the following conditions— 

… 

(c) 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: 

“The onus is on the appellant to provide sufficient detailed evidence or information to support his case and demonstrate that the use or operations described in the application would be lawful, if instituted or begun at the time of the application. In accordance with this burden of proof the applicant/appellant is expected to describe the proposal with sufficient clarity and precision to enable the decision-maker to understand from a written description and plans exactly what is involved in the proposal. In this case the appellant accepts that the description of the side-window was “ambiguous and needs re-wording to specifically state that it should be obscure glazed and non-opening”. 

… The plans and application are lacking in essential details, which the appellant had opportunity to provide or overcome by submitting an amended application to the Council after their refusal decision. My view is that by taking the original application to appeal [the appellant] has not discharged the burden of proof placed upon him. The proposal needs to contain more detail and the plans be more specific and precise. Consequently, I consider that because of this defect the whole of the proposal fails to provide sufficient detail to meet the requirements of Class B.2, and would therefore not be development permitted by Class B of the GPDO”. 

Main Conclusions: 

·       A certificate of lawful development should be refused if the applicant has not demonstrated full compliance with all of the conditions of the Class.
[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 the application should be refused.
[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].

·       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=a00074-Appeal-Decision-Notice.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Drawings:
http://planningjungle.com/?s2member_file_download=a00074-Drawings.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

Download documents and diagrams of useful

Permitted Development information