Appeal Decision 118 - Certificate of Lawful Development.

The following appeal summary has been written by Steve Speed, and is available on his website www.planningjungle.com

11 June 2010 – 83 Bodley Road, New Malden, KT3 5QJ  

Planning Inspectorate Reference: APP/Z5630/X/09/2114743 (appeal A) and APP/Z5630/X/10/2124654 (appeal B) 

Inspector: G P Bailey MRICS 

Royal Borough of Kingston-upon-Thames Reference: 09/14494/LDP and 09/14772/LDP 

Summary of Case (appeal A dismissed, appeal B allowed): 

The property is a two-storey semi-detached house with a long rear garden. The application (for both appeals) was for a proposed outbuilding at the end of the rear garden, which would have had overall width 8m, length 9m, and height 2.5m – 4.0m. In appeal A, the walls of the outbuilding would have been 2m from the boundaries, meaning that the projecting eaves would have been closer than 2m. In appeal B, the walls of the outbuilding would have been 2.05m from the boundaries, meaning that the projecting eaves would not have been closer than 2m. 

The key issue was whether the proposed outbuilding would be contrary to Class E, part E.1(d), which states that “Development is not permitted by Class E if … the height of the building, enclosure or container would exceed … (ii) 2.5 metres in the case of a building, enclosure or container within 2 metres of the boundary of the curtilage of the dwellinghouse”. 

The Inspector stated the following: 

“In the light of the Council’s reasons for refusal, it is incumbent on the appellant to explain in this appeal why the Council’s objection on this ground is misplaced. Although he maintains in Appeal A that the nearest point of the structure would be 2m from the boundaries, he also refers to projecting eaves. 

It would be critical therefore for the appellant to demonstrate that those projecting eaves would not result in the structure encroaching within the relevant 2m cordon. For example, on the rear (south-eastern) elevation, the submitted plans indicate that the eaves of the pitched roof would project beyond the external face of the south-eastern external wall. On the face of matters, that projection would bring the structure within the critical limitation  

of 2m. The appellant has not provided sufficient information or explanation that would refute the Council’s objection. 

Moreover, it may be the case that within 2m of the boundary, no part of the building would exceed 2.5m in height. But it would be a building part, but not all, of which would be situated within 2m of the boundary of the curtilage. The proposed building is a single entity and whilst it would straddle the line of the critical 2m-wide criterion, looked at in-the-round, the informed observer would readily identify the siting of the building as being one that would encroach within 2m of the curtilage boundary. Thus, paragraphs E.1 and E.1(d)(ii), taken together indicate that development would not be permitted if the height of the building would exceed 2.5m. And it would do so. 

Hence, the scheme in Appeal A would fail the limitations of Class E and, as a consequence, for this reason alone, it would not be permitted development. 

The scheme in Appeal B is not the subject of such reason for refusal; that scheme differs from that of Appeal A inasmuch as the external faces of the external walls would be sited not less than 2.05m from the boundaries of the curtilage. It follows therefore that, in respect of Appeal B, the Council accepts that all of the limitations of Class E would be met.” 

Main Conclusions: 

·       Where the walls of an outbuilding would not be within 2m of a boundary, but the eaves of the outbuilding would overhang to slightly within 2m of a boundary, then the 2.5m height restriction of E.1(d) would apply.
[Relevant to: A.1(g), E.1(d)].

·       Where parts of a proposed outbuilding are within 2m of a boundary, the 2.5m height limit applies not just to those parts within 2m of the boundary, but to all parts of the proposed outbuilding.
[Relevant to: A.1(g), E.1(d)].

Link to case on Planning Inspectorate website: 

http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?casename=APP/Z5630/X/09/2114743&caseaddress=COO.2036.300.8.2568379 

http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?casename=APP/Z5630/X/10/2124654&caseaddress=COO.2036.300.8.3346687 

Link to LPA website: 

www.kingston.gov.uk 

Download documents and diagrams of useful

Permitted Development information