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Appeal Decision 133 - Certificate of Lawful Development.

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September 2010 - Code a00133


Summary of Case (appeal dismissed): 


The property is a two-storey house with an original two-storey rear projection. A large rear dormer has been constructed, which has involved raising the main ridge-line. This application was submitted under section 192, and the submitted drawings appear to show an amended rear dormer that would not involve raising the main ridge-line. 


The Council’s reason for refusal was as follows:


”The proposed dormer window is not permitted by Class B as it breach criteria B1(a) and B2(b) of Part 1, Schedule 2 of the Town and Country Planning (General Permitted Development) (Amendment) (No.2) (England) Order 2008.” 


The first key issue was whether the appeal should be assessed on the basis of the (hypothetical) proposed extension that is shown on the submitted drawings, or on the basis of the (actual) existing extension that has been constructed on the site. 


The Inspector stated the following: 


“The application was made and the refusal was given for a proposed development pursuant to s.192 of the 1990 Act (as amended). However, the Officer’s Report refers to the type of application as s.191 and it states that ‘A site inspection showed the development has been substantially completed’. The Informative on the notice of refusal indicates that the development had been built. At my visit I noted that a rear dormer window had been built and it seems to me that the Appellant accepts that what has been built is not reflected in the plans because he says ‘the Agent was instructed to go ahead with the building of the rear dormer as long as we kept to the plans, which apart from the raised ridge has been the case’. This completed development is the subject of a separate appeal. 


The purpose of s.192 is for an owner, or others, to ascertain whether specific operations would be lawful by making an application to the local planning authority. The section provides that if the LPA are supplied with information satisfying them that the operations described in the application would be lawful, if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application. The burden of proof is firmly on the applicant and he will have to describe the proposal with sufficient clarity and precision to enable the LPA to understand (from a written description and plans) exactly what is involved in the proposal. 


I am therefore of the opinion that as the application was made under s.192 I have to determine the appeal on the same basis, taking into account the submitted drawings”. 


The second key issue was whether the proposed rear dormer 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 proposed rear elevation and the section through the loft show the dormer rising straight from the rear wall of the dwelling. There is no set back as required in B.2 (b). 


Any claim for permitted development rights must be measured against each of the elements in the Class and if any are failed then the development is not permitted. The proposal is therefore not permitted development as it fails to comply with condition B.2 (b).” 


Main Conclusions: 


·       Where an application is submitted under section 192 (proposed), rather than under section 191 (existing), the application should be assessed on the basis of the (hypothetical) proposed situation that is shown on the submitted drawings, rather than on the basis of the (actual) existing situation that has been constructed on the site.
[Relevant to: “Interaction between section 191 (existing) and section 192 (proposed)”].


·       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: 

·       Existing Drawings: 

·       Proposed Drawings: 





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