Appeal Decision 91 - Certificate of Lawful Development.

February 2010 - Code a00091

Summary of Case (appeal allowed): 

The property is a two-storey mid-terrace house with an original two-storey rear projection. The application was for a proposed “L”-shaped dormer, which would have been across both the rear roof of the main part of the house as well as the side roof of the original two-storey rear projection. 

Although no part of the proposed dormer would have exceeded the height of the main ridge-line of the house, the part of the dormer on the side roof of the original two-storey rear projection would have exceeded (by 2.3m) the height of the ridge-line of the latter structure. 

The first key issue was whether the proposed dormer would be contrary to Class B, part B.1(a), which states that “Development is not permitted by Class B if … any part of the dwellinghouse would, as a result of the works, exceed the height of the highest part of the existing roof”. 

The Inspector stated the following: 

“… whilst it is correct that the dormer would project considerably above the ridge of the two-storey off-shoot it would not be higher than the highest part of the existing roof of the dwelling, which is the ridge of the main part of the house. The wording of Class B of Part 1 does not refer to different roof sections of a dwellinghouse; it refers only to the “highest part of the existing roof” which, in this case, is the ridge of the roof of the terrace running parallel to [the road]. The proposed dormer would not exceed the height of that ridge and it follows that the proposed dormer would be permitted development under the provisions of Class B of Part 1 of Schedule 2 to the GPDO.  

Confirmation of the correctness of this approach is also found in the judgement given in Hammersmith and Fulham LBC v Secretary of State for the Environment and Mrs D Davison [1994] JPL 957. In that case it was determined, amongst other things, that the words given in paragraph B.1(a) of Class B refer to the highest part of the roof of the dwellinghouse as a whole and not to some more limited part thereof. That is precisely the situation in this appeal.” 

As the eaves of the original two-storey rear projection are at a lower level than the eaves of the main rear roof, the part where the dormer extends from the former roof to the latter roof would involve removing a section of the original eaves of the main rear roof. 

The second key issue was whether this would be contrary to Class B, part B.2(b), which states that “other than in the case of a hip-to-gable enlargement, the edge of the enlargement closest to the eaves of the original roof shall, so far as practicable, be not less than 20 centimetres from the eaves of the original roof”. 

The Inspector stated the following: 

“The eaves of the existing dwelling follow the L-shape of the main rear wall of the dwelling and the eastern side of the rear off-shoot. The application plans show that the vertical walls of the proposed dormer would be built at least 20cm behind the eaves of both parts of the property, thus Condition B.2(b) would be met.” 

The submitted drawings did not specify that the new side window at second floor level would be non-opening. 

The third key issue was whether this 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: 

“Additionally, the plans specify that all proposed windows overlooking other neighbours should be of obscure glazing. Whilst Condition B.2(c) requires that such windows be both obscure-glazed and non-opening (unless more than 1.7m above floor-level), I do not consider that there is any fundamental conflict with the terms of this part of the GPDO. If development takes place without compliance with this, or any other, condition, the Council would have powers of enforcement to ensure compliance. Neither reason for refusal is therefore justified or well-founded.”

 

Main Conclusions: 

·       Where a property has an original rear projection (with a roof at a similar level to the main roof) then an extension (e.g. a dormer) on the roof of the original rear projection would fall within the scope of Class B (i.e. rather than Class A).
[Note: This would appear to contradict at least one other appeal decision – for further information see the entry in the “Reference Section” on “Interaction between Class A, Class B, and Class C”].
[Relevant to: “Interaction between Class A, Class B, and Class C”, Class A, A.1(i), Class B, B.1(c)].

·       The phrase “the highest part of the existing roof” refers to the house as a whole (i.e. the main ridge-line), and not just the part of the house where the works would be carried out.
[Note: This would appear to contradict at least one other appeal decision – for further information see the entry in the “Reference Section” on “Highest Part of the … Roof”].
[Relevant to: “Highest Part of the … Roof”, A.1(b), C.1(b), G.1(a), H.1(b)].

·       For example, where a property has an original rear projection, a dormer on the roof of the latter structure is limited by the height of the main ridge-line of the house, and not by the height of the ridge-line of the original rear projection.
[Note: This would appear to contradict at least one other appeal decision – for further information see the entry in the “Reference Section” on “Highest Part of the … Roof”].
[Relevant to: “Highest Part of the … Roof”, A.1(b), B.1(a), C.1(b), G.1(a), H.1(b)].

 

·       Where the eaves of an original two-storey rear projection are at a lower level than the eaves of the main rear roof, the requirement to be not less than 20cm from the eaves of the original roof would not prevent an “L”-shaped dormer that extends from the former roof to the latter roof.
[Relevant to: B.2(b)].

·       A certificate of lawful development should be issued even if the applicant has not demonstrated full compliance with all of the conditions of the Class, so long as it would be possible for the conditions to be met.
[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 a certificate should be issued because this condition could still be met. Should the development proceed without complying with a condition, it would then be open to the Council to take enforcement action against it.
[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].

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

·       Appeal Decision Notice:
http://planningjungle.com/?s2member_file_download=a00091-Appeal-Decision-Notice.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

·       Drawings:
http://planningjungle.com/?s2member_file_download=a00091-Drawings.pdf&s2member_skip_confirmation&s2member_file_inline=yes 

Download documents and diagrams of useful

Permitted Development information