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Appeal Decision 134 - Certificate of Lawful Development.

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September 2010 - Code a00134


Summary of Case (appeal dismissed): 


The property is a three-storey (including roof level) semi-detached house, which has a small original single storey rear projection (which appears to have been extended rearward), and an existing rear dormer (on the main rear roof slope). The application was for a proposed first floor rear extension, which would be located on top of the single storey rear projection and therefore located just in front of the existing rear dormer. The proposed first floor rear extension would have had a flat roof, whereas the main roof is dual-pitched (with a gable end). 


The key issue was whether the proposed first floor rear extension would be contrary to Class A, part A.3(c), which states that “Development is permitted by Class A subject to the following conditions— … (c) where the enlarged part of the dwellinghouse has more than one storey, the roof pitch of the enlarged part shall, so far as practicable, be the same as the roof pitch of the original dwellinghouse”. 


The Inspector stated the following: 


“The appellant contends that “so far as practicable” is vague in meaning and suggests that there is some room for each application to be assessed on its own merits, with a pitched roof not necessarily the case for every submission. The appellant argues in this case, given the style of the existing dwelling at the rear and the fact that there is already a rear dormer, that a pitched roof would not be practicable and would look incongruous. Furthermore, the appellant claims that the proposed parapet wall design with a flat roof behind would be in keeping with the original single-storey flat roof balcony and would avoid a visual clash of different elements on the rear of the property. 


However, the Council indicates that, in its view, the intention of condition A.3 (c) is to ensure that two-storey and first floor extensions built under permitted development rights have pitched roofs that are designed, as far as “practical”, to ensure satisfactory integration with and sympathy for the style and character of the dwelling. While the Council accepts that “as far as practical” appears to provide some flexibility, it points out that if a matching pitch cannot be achieved the next best solution must be sought. In this case, the Council considers that there are other solutions which would provide a much better design solution than the flat roof, as proposed. 


Paragraph 8.26 of Annex 8 of Circular 10/97 “Enforcing Planning Control: Legislative Provisions and Procedural Requirements” says that in an application of this type the burden of proof is firmly on the applicant or, at this stage, the appellant. It is therefore up to the appellant to submit whatever supporting information is necessary to satisfy the local planning authority that a LDC should be granted. However, the agent acting for the appellant has not produced evidence in the form of written information, drawings, or even sketches or superimposed additions to photographs, with or without any structural calculations as necessary, to show why other design solutions which incorporated a similar pitch to that of the main roof, or even some other form of pitched roof, would not be practicable in this instance. 


Even though the existence of the roof dormer will clearly complicate the provision of a first floor extension on that part of the rear elevation, the appellant has provided no information about any other schemes that were or could have been considered. There is no indication of whether any other schemes were discounted for structural reasons or because they would not have been feasible for certain reasons or even if alternatives were rejected on grounds of excessive cost. While I consider that an assessment of whether something is practicable must focus on practical and structural considerations rather than economic factors, I have not had any opportunity to take into account within any comprehensive consideration the comparative visual benefits, general feasibilities and the overall economic viabilities of different solutions, some of which perhaps might have required some modification to the existing dormer. 




I am not persuaded that the appellant has demonstrated that, as far as practicable, a roof pitch the same as the roof pitch of the original dwellinghouse could not be provided on the proposed first floor extension. The proposal would therefore be contrary to both the precise wording of and the intentions behind condition A.3 (c) which, in my opinion, seek to discourage higher level extensions which are unsympathetic in their roof styles and designs to those of the main dwelling. Compliance of the amended scheme with condition A.3 (b) does not overcome this. I therefore conclude that the proposed development would not be permitted development by virtue of Article 3 and Class A of the Town and Country Planning (General Permitted Development) Order 1995 (as amended by the Town and Country Planning (General Permitted Development) (Amendment) (No. 2) (England) Order 2008) and the appeal is not successful.” 


Main Conclusions: 


·       In an application for a certificate of lawfulness, the burden of proof is firmly on the applicant.
[Relevant to: "General”].


·       The assessment of whether it is “practicable” for the roof pitch of an extension to be the same as the roof pitch of the original house should focus on structural and practical considerations.
[Relevant to: A.3(c)].


·       Where an applicant claims that it is not practicable for the roof pitch of an extension to be the same as the roof pitch of the original house, the burden of proof is firmly on the applicant to demonstrate that this is not practicable.
[Relevant to: A.3(c)].


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


·       Appeal Decision Notice: 

·       OS Map: 

·       Existing Drawings: 

·       Proposed Drawings: 






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