Appeal Decision 75 - Certificate of Lawful Development.

January 2010 - Code a00075

Summary of Case (appeal dismissed): 

The application, which was made after 01/10/2008 (on 09/04/2009), was for an existing single storey rear conservatory, which was built in 2003. 

The Council said the existing single storey rear extension was unlawful because it did not comply with the requirements of Schedule 2, Part 1, Class A of the Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2008, (GPDO), which came into force on 1 October 2008. This was on the basis that the extension projects more than 3m from the rear wall of the original house. 

The Inspector stated the following: 

“… It is an established principle in considering permitted development rights that the relevant date for the determination of whether work is in breach of planning control is the date of commencement of the work. 

Thus the permitted development rights against which the development must be considered are derived from the GPDO in force at the date of commencement, R J Williams Le Roi v SSE & Salisbury DC [1993] JPL 1033. Changes in the GPDO do not apply retrospectively. 

The position in respect of LDC applications made under s.191 is the same, regardless of the date when the application was made. The question of lawfulness is to be considered at the date of the application but whether, at that date, the development was lawful is still to be assessed against the relevant GPDO at the date the development commenced. The Council should therefore have considered the application against Schedule 2, Part 1, Class A of the previous Town and Country Planning (General Permitted Development) Order 1995. 

The Inspector then dismissed the appeal, firstly because the volume of the extension exceed the limitations of the previous Class A, and secondly because this particular application constituted a contravention of a requirement of an enforcement notice in force at the time of the application. 

Main Conclusions: 

·       Where an application is received (on or after 01/10/2008) for existing works that were begun prior to 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”].

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

·       Appeal Decision Notice:
http://planningjungle.com/?s2member_file_download=a00075-Appeal-Decision-Notice.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

Download documents and diagrams of useful

Permitted Development information